17 CFR Part 201 — Rules of Practice

PART 201—RULES OF PRACTICE Authority: 15 U.S.C. 77s, 77sss, 78w, 78x, 80a-37, and 80b-11; 5 U.S.C. 504(c)(1). Sections 201.700 and 201.701 are also issued under sec. 916, Pub. L. 111-203, 124 Stat. 1376. Source: 47 FR 610, Jan. 6, 1982, unless otherwise noted. Subpart A [Reserved] Subpart B—Regulations Pertaining to the Equal Access to Justice Act § 201.31 Purpose of these rules. The Equal Access to Justice Act, 5 U.S.C. 504 (called the Act adversary adjudications [54 FR 53051, Dec. 27, 1989] § 201.32 When the Act applies. The Act applies to adversary adjudications described in § 201.33 pending or commenced before the Commission on or after August 5, 1985. It also applies to any adversary adjudication commenced on or after October 1, 1984, and finally disposed of before August 5, 1985, provided that an application for fees and expenses, as described in these rules, has been filed with the Commission within 30 days after August 5, 1985. Proceedings which have been substantially concluded are not deemed pending under these rules although officially pending for purposes such as concluding remedial actions found in Commission orders or private undertakings. [54 FR 53051, Dec. 27, 1989] § 201.33 Proceedings covered. (a) The Act applies to adversary adjudications conducted by the Commission. These are on the record adjudications under 5 U.S.C. 554 in which the position of an Office or Division of the Commission as a party, not including amicus See (b) The fact that the Commission has not identified a type of proceeding as an adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding is covered by the Act; whether the proceeding is covered will then be an issue for resolution in proceedings on the application. (c) If a proceeding includes both matters covered by the Act and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues. [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989] § 201.34 Eligibility of applicants. (a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a party to the adversary adjudication for which it seeks it seeks an award. The term party (b) The types of eligible applicants are as follows: (1) An individual with a net worth of not more than $2 million; (2) The sole owner of an unincorporated business who has a net worth of not more than $7 million, including both personal and business interests, and not more than 500 employees; (3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees; (4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) with more than 500 employees; and (5) Any other partnership, corporation, association, unit of local government, or public or private organization with a new worth of not more than $7 million and not more than 500 employees. (c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated. (d) An applicant who owns an unincorporated business will be considered as an individual sole owner of an unincorporated business (e) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant's direction and control. Part-time employees shall be included on a proportional basis. (f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual, corporation or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or any corporation or entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes of this subpart, unless the administrative law judge determines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities. In addition, the administrative law judge may determine that financial relationships of the applicant other than those described in this paragraph constitute special circumstances that would make an award unjust. (g) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible is not itself eligible for an award. [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989] § 201.35 Standards for awards. (a) A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding or in a significant and discrete substantive portion of the proceeding, unless the position of the Office or Division over which the applicant has prevailed was substantially justified. The position of the Office or Division includes, in addition to the position taken by the Office or Division in the adversary adjudication, the action or failure to act by the Office or Division upon which the adversary adjudication is based. The burden of proof that an award should not be made to an eligible prevailing applicant is on counsel for an Office or Division of the Commission, which must show that its position was reasonable in law and fact. (b) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust. [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989] § 201.36 Allowable fees and expenses. (a) Subject to the limitation of paragraph (b), awards will be based on rates customarily charged, in the locale of the hearing, by persons engaged in the business of acting as attorneys, agents and expert witnesses, even if the services were made available without charge or at a reduced rate to the applicant. (b) No award of the fee of an attorney or agent under these rules may exceed $75.00 per hour. No award to compensate an expert witness may exceed the reasonable rate at which the Commission pays witnesses with similar expertise. However, an award may also include the reasonable expenses of the attorney, agent or witness as a separate item, if the attorney, agent or witness ordinarily charges clients separately for such expenses. (c) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the administrative law judge shall consider the following: (1) If the attorney, agent or witness is in private practice, his or her customary fee for similar services, or, if an employee of the applicant the fully allocated cost of the services; (2) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services; (3) The time actually spent in the representation of the applicant; (4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and (5) Such other factors as may bear on the value of the services provided. (d) The reasonable cost of any study, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant's case. [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989] § 201.37 Delegations of authority. (a) The Commission may by order delegate authority to take final action on matters pertaining to the Equal Access to Justice Act in particular cases. (b) Unless the Commission shall order otherwise, applications for awards of fees and expenses made pursuant to this subject shall be assigned by the Chief Administrative Law Judge to an administrative law judge for determination. [54 FR 53051, Dec. 27, 1989] § 201.41 Contents of application. (a) An application for an award of fees and expenses under the Act shall identify the applicant, the proceeding for which an award is sought and contain the information required in this subpart. The application shall show that the applicant has prevailed and specify the position(s) of the opposing Office or Division in the proceeding that the applicant alleges was not substantially justified. Unless the applicant is an individual, the application shall also state the number of employees of the applicant and describe briefly the type and purpose of its organization or business. (b) The application shall also include a statement that the applicant's net worth does not exceed $2 million (if an individual) or $7 million (for all other applicants, including their affiliates). However, an applicant may omit this statement if: (1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant's belief that it qualifies under such section; or (2) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)). (c) The application shall state the amount of fees and expenses for which an award is sought. (d) The application may also include any other matters that the applicant wishes the Commission to consider in determining whether and in what amount an award should be made. (e) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the information provided in the application is true and correct. [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989] § 201.42 Net worth exhibit. (a) Each applicant, except a qualified tax-exempt organization or cooperative association, must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as defined in § 201.34(f) of this part) when the proceeding was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant's and its affiliates' assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this subpart. The administrative law judge or the Commission may require an applicant to file additional information to determine its eligibility for an award. (b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may submit that exhibit in accordance with 17 CFR 201.190. [47 FR 610, Jan. 6, 1982, as amended at 60 FR 32795, June 23, 1995] § 201.43 Documentation of fees and expenses. The application shall be accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test, project or similar matter, for which an award is sought. A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the specific services performed, the rate at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The applicant may be required to provide vouchers, receipts, or other substantiation for any fees or expenses claimed. § 201.44 When an application may be filed. (a) An application may be filed whenever the applicant has prevailed in the proceeding or in a significant and discrete substantive portion of the proceeding, but in no case later than 30 days after the Commission's final disposition of the proceeding. (b) For purposes of this rule, final disposition means the date on which a decision or order disposing of the merits of the proceeding or any other complete resolution of the proceeding, such as a settlement or voluntary dismissal, becomes final and unappealable, both within the Commission and to the courts. (c) If review or reconsideration is sought or taken of a decision as to which an applicant believes it has prevailed, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy. [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53052, Dec. 27, 1989] § 201.51 Filing and service of documents. Any application for an award or other document related to an application shall be filed and served in the same manner as other papers in proceedings under the Commission's Rules of Practice. In addition, a copy of each application for fees and expenses shall be served on the General Counsel of the Commission. § 201.52 Answer to application. (a) Within 30 days after service of an application, counsel representing the Office or Division of the Commission may file an answer to the application. Unless the Office or Division of the Commission counsel requests an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of this section, failure to file an answer within the 30-day period may be treated as a consent to the award requested. (b) If counsel for the Office or Division of the Commission and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted upon request by agency counsel and the applicant. (c) The answer shall explain any objections to the award requested and identify the facts relied on in support of that position. If the answer is based on any alleged facts not already in the record of the proceeding, it shall include supporting affidavits or a request for further proceedings under § 201.55. § 201.53 Reply. Within 15 days after service of an answer, the applicant may file a reply. If the reply is based on any alleged facts not already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under § 201.55. § 201.54 Settlement. The applicant and counsel for the Office or Division of the Commission may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying proceeding or after the underlying proceeding has been concluded, in accordance with the Commission's standard settlement procedure. See 17 CFR 201.240. If a prevailing party and counsel for the Office or Division of the Commission agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement. If a proposed settlement provides that each side shall bear its own expenses, and the settlement is accepted, no application may be filed. [54 FR 53052, Dec. 27, 1989, as amended at 60 FR 32795, June 23, 1995] § 201.55 Further proceedings. (a) Ordinarily, the determination of an award will be made on the basis of the written record. However, on request of either the applicant or counsel for the Office or Division of the Commission, or on his or her own initiative, the administrative law judge may order further proceedings, such as an informal conference, oral argument, additional written submissions or, as to issues other than substantial justification (such as the applicant's eligibility or substantiation of fees and expenses) an evidentiary hearing. The administrative law judge may order all proceedings that are otherwise available under § 201.221 and § 201.222(a). Such further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application, and shall be conducted as promptly as possible. Whether or not the Commission's position was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought. (b) A request for further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues. [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53052, Dec. 27, 1989; 70 FR 72569, Dec. 5, 2005] § 201.56 Decision. The administrative law judge shall issue an initial decision on the application promptly after completion of proceedings on the application. The decision shall include written findings and conclusions on the applicant's eligibility and status as a prevailing party, and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the Commission's position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. § 201.57 Commission review. In accordance with the procedures set forth in 17 CFR 201.410 and 201.411, either the applicant or counsel for the Office or Division of the Commission may seek review of the initial decision on the fee application, or the Commission may decide to review the decision on its own initiative. If neither the applicant nor counsel for the Division or Office of the Commission seeks review and the Commission does not take review on its own initiative, the initial decision on the application shall become a final decision of the Commission 30 days after it is issued. Whether to review a decision is a matter within the discretion of the Commission. If review is taken, the Commission will issue a final decision on the application or remand the application to the administrative law judge for further proceedings. [47 FR 610, Jan. 6, 1982, as amended at 60 FR 32795, June 23, 1995] § 201.58 Judicial review. Judicial review of final Commission decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2). § 201.59 Payment of award. An applicant seeking payment of an award shall submit to the Chief Financial Officer of the Commission a copy of the Commission's final decision granting the award, accompanied by a sworn statement that the applicant will not seek review of the decision in the United States courts. The Commission will pay the amount awarded to the applicant as authorized by law, unless judicial review of the award has been sought by the applicant. [54 FR 53052, Dec. 27, 1989, as amended at 76 FR 60372, Sept. 29, 2011] § 201.60 [Reserved] Subpart C [Reserved] Subpart D—Rules of Practice Authority: 15 U.S.C. 77f, 77g, 77h, 77h-1, 77j, 77s, 77u, 77sss, 78c(b), 78d-1, 78d-2, 78 l, o o o Source: 60 FR 32796, June 23, 1995, unless otherwise noted. General Rules § 201.100 Scope of the rules of practice. (a) Unless provided otherwise, these Rules of Practice govern proceedings before the Commission under the statutes that it administers. (b) These rules do not apply to: (1) Investigations, except where made specifically applicable by the Rules Relating to Investigations, part 203 of this chapter; or (2) Actions taken by the duty officer pursuant to delegated authority under 17 CFR 200.43. (3) Initiation of proceedings for SRO proposed rule changes under 17 CFR 201.700-701, except where made specifically applicable therein. (c) The Commission, upon its determination that to do so would serve the interests of justice and not result in prejudice to the parties to the proceeding, may by order direct, in a particular proceeding, that an alternative procedure shall apply or that compliance with an otherwise applicable rule is unnecessary. [60 FR 32796, June 23, 1995; 60 FR 46499, Sept. 7, 1995, as amended at 69 FR 13175, Mar. 19, 2004; 76 FR 4070, Jan. 24, 2011] § 201.101 Definitions. (a) For purposes of these Rules of Practice, unless explicitly stated to the contrary: (1) Commission (2) Counsel (3) Disciplinary proceeding (4) Enforcement proceeding (5) Hearing officer (6) Interested division (7) Order instituting proceedings (8) Party (9) Proceeding (i) By an order instituting proceedings; or (ii) By the filing, pursuant to § 201.410, of a petition for review of an initial decision by a hearing officer; or (iii) By the filing, pursuant to § 201.420, of an application for review of a self-regulatory organization determination; or (iv) By the filing, pursuant to § 201.430, of a notice of intention to file a petition for review of a determination made pursuant to delegated authority; or (v) By the filing, pursuant to § 201.440, of an application for review of a determination by the Public Company Accounting Oversight Board; or (vi) By the filing, pursuant to § 242.601 of this chapter, of an application for review of an action or failure to act in connection with the implementation or operation of any effective transaction reporting plan; or (vii) By the filing, pursuant to § 242.608 of this chapter, of an application for review of an action taken or failure to act in connection with the implementation or operation of any effective national market system plan; or (viii) By the filing, pursuant to Section 11A(b)(5) of the Securities Exchange Act of 1934, of an application for review of a determination of a registered securities information processor; (ix) By the filing, pursuant to § 201.442, of an application for review of a determination of a security-based swap execution facility; (10) Secretary (11) Temporary sanction (12) Board (b) [Reserved] [60 FR 32796, June 23, 1995, as amended at 69 FR 13175, Mar. 19, 2004; 70 FR 37617, June 29, 2005; 88 FR 87282, Dec. 15, 2023] § 201.102 Appearance and practice before the Commission. A person shall not be represented before the Commission or a hearing officer except as stated in paragraphs (a) and (b) of this section or as otherwise permitted by the Commission or a hearing officer. (a) Representing oneself. (b) Representing others. (c) Former Commission employees. (d) Designation of address for service; notice of appearance; power of attorney; withdrawal Representing oneself. (2) Representing others. (3) Power of attorney. (4) Withdrawal. (e) Suspension and disbarment Generally. (i) Not to possess the requisite qualifications to represent others; or (ii) To be lacking in character or integrity or to have engaged in unethical or improper professional conduct; or (iii) To have willfully violated, or willfully aided and abetted the violation of any provision of the Federal securities laws or the rules and regulations thereunder. (iv) With respect to persons licensed to practice as accountants, “improper professional conduct” under § 201.102(e)(1)(ii) means: (A) Intentional or knowing conduct, including reckless conduct, that results in a violation of applicable professional standards; or (B) Either of the following two types of negligent conduct: ( 1 ( 2 (2) Certain professionals and convicted persons. (3) Temporary suspensions. (i) The Commission, with due regard to the public interest and without preliminary hearing, may, by order, temporarily suspend from appearing or practicing before it any attorney, accountant, engineer, or other professional or expert who has been by name: (A) Permanently enjoined by any court of competent jurisdiction, by reason of his or her misconduct in an action brought by the Commission, from violating or aiding and abetting the violation of any provision of the Federal securities laws or of the rules and regulations thereunder; or (B) Found by any court of competent jurisdiction in an action brought by the Commission to which he or she is a party or found by the Commission in any administrative proceeding to which he or she is a party to have violated (unless the violation was found not to have been willful) or aided and abetted the violation of any provision of the Federal securities laws or of the rules and regulations thereunder. (ii) Any person temporarily suspended from appearing and practicing before the Commission in accordance with paragraph (e)(3)(i) of this section may, within 30 days after service upon him or her of the order of temporary suspension, petition the Commission to lift the temporary suspension. If no petition has been received by the Commission within 30 days after service of the order, the suspension shall become permanent. (iii) Within 30 days after the filing of a petition in accordance with paragraph (e)(3)(ii) of this section, the Commission shall either lift the temporary suspension, or set the matter down for hearing at a time and place designated by the Commission, or both, and, after opportunity for hearing, may censure the petitioner or disqualify the petitioner from appearing or practicing before the Commission for a period of time or permanently. In every case in which the temporary suspension has not been lifted, every hearing held and other action taken pursuant to this paragraph (e)(3) shall be expedited in accordance with § 201.500. If the hearing is held before a hearing officer, the time limits set forth in § 201.540 will govern review of the hearing officer's initial decision. (iv) In any hearing held on a petition filed in accordance with paragraph (e)(3)(ii) of this section, the staff of the Commission shall show either that the petitioner has been enjoined as described in paragraph (e)(3)(i)(A) of this section or that the petitioner has been found to have committed or aided and abetted violations as described in paragraph (e)(3)(i)(B) of this section and that showing, without more, may be the basis for censure or disqualification. Once that showing has been made, the burden shall be upon the petitioner to show cause why he or she should not be censured or temporarily or permanently disqualified from appearing and practicing before the Commission. In any such hearing, the petitioner may not contest any finding made against him or her or fact admitted by him or her in the judicial or administrative proceeding upon which the proceeding under this paragraph (e)(3) is predicated. A person who has consented to the entry of a permanent injunction as described in paragraph (e)(3)(i)(A) of this section without admitting the facts set forth in the complaint shall be presumed for all purposes under this paragraph (e)(3) to have been enjoined by reason of the misconduct alleged in the complaint. (4) Filing of prior orders. (5) Reinstatement. (ii) Any person suspended under paragraph (e)(2) of this section shall be reinstated by the Commission, upon appropriate application, if all the grounds for application of the provisions of that paragraph are subsequently removed by a reversal of the conviction or termination of the suspension, disbarment, or revocation. An application for reinstatement on any other grounds by any person suspended under paragraph (e)(2) of this section may be filed at any time and the applicant shall be accorded an opportunity for a hearing in the matter; however, such suspension shall continue unless and until the applicant has been reinstated by order of the Commission for good cause shown. (6) Other proceedings not precluded. (7) Public hearings. (f) Practice defined. (1) Transacting any business with the Commission; and (2) The preparation of any statement, opinion or other paper by any attorney, accountant, engineer or other professional or expert, filed with the Commission in any registration statement, notification, application, report or other document with the consent of such attorney, accountant, engineer or other professional or expert. [60 FR 32796, June 23, 1995, as amended at 63 FR 57122, Oct. 26, 1998; 69 FR 13176, Mar. 19, 2004; 70 FR 72569, Dec. 5, 2005; 85 FR 86477, Dec. 30, 2020] § 201.103 Construction of rules. (a) The Rules of Practice shall be construed and administered to secure the just, speedy, and inexpensive determination of every proceeding. (b) In any particular proceeding, to the extent that there is a conflict between these rules and a procedural requirement contained in any statute, or any rule or form adopted thereunder, the latter shall control. (c) For purposes of these rules: (1) Any term in the singular includes the plural, and any term in the plural includes the singular, if such use would be appropriate; (2) Any use of a masculine, feminine, or neuter gender encompasses such other genders as would be appropriate; and (3) Unless the context requires otherwise, counsel for a party may take any action required or permitted to be taken by such party. § 201.104 Business hours. The Headquarters office of the Commission, at 100 F Street, NE., Washington, DC 20549, is open each day, except Saturdays, Sundays, and Federal legal holidays, from 9 a.m. to 5:30 p.m., Eastern Standard Time or Eastern Daylight Saving Time, whichever is currently in effect in Washington, D.C. Federal legal holidays consist of New Year's Day; Birthday of Martin Luther King, Jr.; Presidents Day; Memorial Day; Independence Day; Labor Day; Columbus Day; Veterans Day; Thanksgiving Day; Christmas Day; and any other day appointed as a holiday in Washington, D.C. by the President or the Congress of the United States. [60 FR 32796, June 23, 1995, as amended at 70 FR 72569, Dec. 5, 2005] § 201.110 Presiding officer. All proceedings shall be presided over by the Commission or, if the Commission so orders, by a hearing officer. When the Commission designates that the hearing officer shall be an administrative law judge, the Chief Administrative Law Judge shall select, pursuant to 17 CFR 200.30-10, the administrative law judge to preside. § 201.111 Hearing officer: Authority. The hearing officer shall have the authority to do all things necessary and appropriate to discharge his or her duties. No provision of these Rules of Practice shall be construed to limit the powers of the hearing officer provided by the Administrative Procedure Act, 5 U.S.C. 556, 557. The powers of the hearing officer include, but are not limited to, the following: (a) Administering oaths and affirmations; (b) Issuing subpoenas authorized by law and revoking, quashing, or modifying any such subpoena; (c) Receiving relevant evidence and ruling upon the admission of evidence and offers of proof; (d) Regulating the course of a proceeding and the conduct of the parties and their counsel; (e) Holding prehearing and other conferences as set forth in § 201.221 and requiring the attendance at any such conference of at least one representative of each party who has authority to negotiate concerning the resolution of issues in controversy; (f) Recusing himself or herself upon motion made by a party or upon his or her own motion; (g) Ordering, in his or her discretion, in a proceeding involving more than one respondent, that the interested division indicate, on the record, at least one day prior to the presentation of any evidence, each respondent against whom that evidence will be offered; (h) Subject to any limitations set forth elsewhere in these Rules of Practice, considering and ruling upon all procedural and other motions, including a motion to correct a manifest error of fact in the initial decision. A motion to correct is properly filed under this Rule only if the basis for the motion is a patent misstatement of fact in the initial decision. Any motion to correct must be filed within ten days of the initial decision. A brief in opposition may be filed within five days of a motion to correct. The hearing officer shall have 20 days from the date of filing of any brief in opposition filed to rule on a motion to correct; (i) Preparing an initial decision as provided in § 201.360; (j) Upon notice to all parties, reopening any hearing prior to the filing of an initial decision therein, or, if no initial decision is to be filed, prior to the time fixed for the filing of final briefs with the Commission; and (k) Informing the parties as to the availability of one or more alternative means of dispute resolution, and encouraging the use of such methods. [60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004; 70 FR 72569, Dec. 5, 2005] § 201.112 Hearing officer: Disqualification and withdrawal. (a) Notice of disqualification. (b) Motion for withdrawal. § 201.120 Ex parte communications. (a) Except to the extent required for the disposition of ex parte (1) Consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate; or (2) Be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for the Commission. (b) The Commission's code of behavior regarding ex parte § 201.121 Separation of functions. Any Commission officer, employee or agent engaged in the performance of investigative or prosecutorial functions for the Commission in a proceeding as defined in § 201.101(a) may not, in that proceeding or one that is factually related, participate or advise in the decision, or in Commission review of the decision pursuant to Section 557 of the Administrative Procedure Act, 5 U.S.C. 557, except as a witness or counsel in the proceeding. § 201.140 Commission orders and decisions: Signature and availability. (a) Signature required. (b) Availability for inspection. (c) Date of entry of orders. [60 FR 32796, June 23, 1995, as amended at 85 FR 86478, Dec. 30, 2020] § 201.141 Orders and decisions: Service of orders instituting proceedings and other orders and decisions. (a) Service of an order instituting proceedings By whom made. (2) How made To individuals. Delivery (ii) To corporations or entities. (iii) Upon persons registered with the Commission. (iv) Upon persons in a foreign country. (A) Any method specified in paragraph (a)(2) of this section that is not prohibited by the law of the foreign country; or (B) By any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or (C) Any method that is reasonably calculated to give notice: ( 1 ( 2 ( 3 (D) By any other means not prohibited by international agreement, as the Commission or hearing officer orders. (v) In stop order proceedings. (vi) To persons registered with self-regulatory organizations. (3) Record of service. (4) Waiver of service. (b) Service of orders or decisions other than an order instituting proceedings. [60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004; 70 FR 72569, Dec. 5, 2005; 81 FR 50233, July 29, 2016; 85 FR 86478, Dec. 30, 2020] § 201.150 Service of papers by parties. (a) When required. ex parte. (b) Upon a person represented by counsel. (c) How made. (1) Certification of inability to serve electronically. (2) [Reserved] (d) Additional methods of service. Delivery (1) Personal service—handing a copy to the person required to be served; or leaving a copy at the person's office with a clerk or other person in charge thereof, or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein; (2) Mailing the papers through the U.S. Postal Service by first class, registered, or certified mail or express mail delivery addressed to the person; (3) Sending the papers through a commercial courier service or express delivery service; or (4) Transmitting the papers by facsimile transmission to the person required to be served. The persons so serving each other shall have provided the Commission and the parties with notice of a facsimile machine telephone number. (e) When service is complete. [60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004; 85 FR 86478, Dec. 30, 2020] § 201.151 Filing of papers with the Commission: Procedure. (a) When to file. (b) Where to file. (c) To whom to direct the filing. (d) Certificate of service. (e) Sensitive personal information. (1) Exceptions. (i) The last four digits of a financial account number, credit card or debit card number, passport number, driver's license number, and state-issued identification number; (ii) Home addresses and telephone numbers of parties and persons filing documents with the Commission; (iii) Business telephone numbers; and (iv) Copies of unredacted filings by regulated entities or registrants that are available on the Commission's public website. (2) Confidential treatment of information. (3) Certification. [60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004; 85 FR 86478, Dec. 30, 2020] § 201.152 Filing of papers: Form. (a) Electronic filing. (1) Certification of Inability to File Electronically. (2) Additional methods of filing. (b) Form. (1) Reflect a page, electronically or otherwise, that measures 8 1/2 (2) Use 12-point or larger typeface; (3) Include at the head of the paper, or on a title page, the name of the Commission, the title of the proceeding, the names of the parties, the subject of the particular paper or pleading, and the file number assigned to the proceeding; (4) Be paginated with left hand margins at least 1 inch wide, and other margins of at least 1 inch; and (5) Be double-spaced, with single-spaced footnotes and single-spaced indented quotations. (c) Signature required. (d) Suitability for recordkeeping. (e) Form of briefs. (f) Scandalous or impertinent matter. [60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004; 70 FR 72569, Dec. 5, 2005; 85 FR 86479, Dec. 30, 2020] § 201.153 Filing of papers: Signature requirement and effect. (a) General requirements. (b) Effect of signature. (i) the person signing the filing has read the filing; (ii) to the best of his or her knowledge, information, and belief, formed after reasonable inquiry, the filing is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (iii) the filing is not made for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of adjudication. (2) If a filing is not signed, the hearing officer or the Commission shall strike the filing, unless it is signed promptly after the omission is called to the attention of the person making the filing. § 201.154 Motions. The requirements in this section apply to motions and related filings except where another rule expressly governs. (a) Generally. (b) Opposing and reply briefs. (c) Length limitation. [60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004; 70 FR 72569, Dec. 5, 2005; 81 FR 50234, July 29, 2016] § 201.155 Default; motion to set aside default. (a) A party to a proceeding may be deemed to be in default and the Commission or the hearing officer may determine the proceeding against that party upon consideration of the record, including the order instituting proceedings, the allegations of which may be deemed to be true, if that party fails: (1) To appear, in person or through a representative, at a hearing or conference of which that party has been notified; (2) To answer, to respond to a dispositive motion within the time provided, or otherwise to defend the proceeding; or (3) To cure a deficient filing within the time specified by the commission or the hearing officer pursuant to § 201.180(b). (b) A motion to set aside a default shall be made within a reasonable time, state the reasons for the failure to appear or defend, and specify the nature of the proposed defense in the proceeding. In order to prevent injustice and on such conditions as may be appropriate, the hearing officer, at any time prior to the filing of the initial decision, or the Commission, at any time, may for good cause shown set aside a default. § 201.160 Time computation. (a) Computation. (b) Additional time for service by mail. [60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004] § 201.161 Extensions of time, postponements and adjournments. (a) Availability. (b) Considerations in determining whether to extend time limits or grant postponements, adjournments and extensions. (i) The length of the proceeding to date; (ii) The number of postponements, adjournments or extensions already granted; (iii) The stage of the proceedings at the time of the request; (iv) The impact of the request on the hearing officer's ability to complete the proceeding in the time specified by the Commission; and (v) Any other such matters as justice may require. (2) To the extent that the Commission has chosen a timeline under which the hearing would occur beyond the statutory 60-day deadline, this policy of strongly disfavoring requests for postponement will not apply to a request by a respondent to postpone commencement of a cease and desist proceeding hearing beyond the statutory 60-day period. (c)(1) Time limit. (2) Stay pending Commission consideration of offers of settlement. (A) The settling respondent(s) submitting to the Commission staff, within fifteen business days of the stay, a signed offer of settlement in conformance with § 201.240; and (B) Within twenty business days of receipt of the signed offer, the staff submitting the settlement offer and accompanying recommendation to the Commission for consideration. (ii) If the parties fail to meet either of these deadlines or if the Commission rejects the offer of settlement, the hearing officer must be promptly notified and, upon notification of the hearing officer, the stay shall lapse and the proceeding will continue. In the circumstance where: (A) A hearing officer has granted a stay because the parties have “agreed in principle to a settlement;” (B) The agreement in principle does not materialize into a signed settlement offer within 15 business days of the stay; and (C) The stay lapses, the hearing officer will not be required to grant another stay related to the settlement process until both parties have notified the hearing officer in writing that a signed settlement offer has been prepared, received by the Commission's staff, and will be submitted to the Commission. (iii) The granting of any stay pursuant to this paragraph (c) shall stay the timeline pursuant to § 201.360(a). [60 FR 32796, June 23, 1995, as amended at 68 FR 35788, June 17, 2003; 81 FR 50234, July 29, 2016] § 201.180 Sanctions. (a) Contemptuous conduct Subject to exclusion or suspension. (i) Exclude that person from such deposition, hearing or conference, or any portion thereof; and/or (ii) Summarily suspend that person from representing others in the proceeding in which such conduct occurred for the duration, or any portion, of the proceeding. (2) Review procedure. (3) Adjournment. (b) Deficient filings; leave to cure deficiencies. (c) Failure to make required filing or to cure deficient filing. (1) To make a filing required under these Rules of Practice; or (2) To cure a deficient filing within the time specified by the Commission or the hearing officer pursuant to paragraph (b) of this section. [60 FR 32796, June 23, 1995, as amended at 81 FR 50234, July 29, 2016] § 201.190 Confidential treatment of information in certain filings. (a) Application. (b) Procedure for supplying additional information. (c) Confidentiality of materials pending final decision. (d) Public availability of orders. [60 FR 32796, June 23, 1995, as amended at 76 FR 71875, Nov. 21, 2011] § 201.191 Adjudications not required to be determined on the record after notice and opportunity for hearing. (a) Scope of the rule. (b) Procedure. (c) Contents of the record. § 201.192 Rulemaking: Issuance, amendment and repeal of rules of general application. (a) By petition. (b) Notice of proposed issuance, amendment or repeal of rules. Federal Register (1) A statement of the time, place, and nature of the rulemaking proceeding, with particular reference to the manner in which interested persons shall be afforded the opportunity to participate in such proceeding; (2) Reference to the authority under which the rule is proposed; and (3) The terms or substance of the proposed rule or a description of the subjects and issues involved. § 201.193 Applications by barred individuals for consent to associate. (a) Preliminary note. et seq. (1) The nature of the supervision that an applicant will receive or exercise as an associated person with a registered entity is an important matter bearing upon the public interest. In meeting the burden of showing that the proposed association is consistent with the public interest, the application and supporting documentation must demonstrate that the proposed supervision, procedures, or terms and conditions of employment are reasonably designed to prevent a recurrence of the conduct that led to imposition of the bar. As an associated person, the applicant will be limited to association in a specified capacity with a particular registered entity and may also be subject to specific terms and conditions. (2) Normally, the applicant's burden of demonstrating that the proposed association is consistent with the public interest will be difficult to meet where the applicant is to be supervised by, or is to supervise, another barred individual. In addition, where an applicant wishes to become the sole proprietor of a registered entity and thus is seeking Commission consent notwithstanding an absence of supervision, the applicant's burden will be difficult to meet. (3) In addition to the factors set forth in paragraph (d) of this section, the Commission will consider the nature of the findings that resulted in the bar when making its determination as to whether the proposed association is consistent with the public interest. In this regard, attention is directed to § 202.5(e) of the Commission's Rules on Informal and Other Procedures, 17 CFR 202.5(e). Among other things, § 202.5(e) sets forth the Commission's policy “not to permit a * * * respondent [in an administrative proceeding] to consent to * * * [an] order that imposes a sanction while denying the allegations in the * * * order for proceedings.” Consistent with the rationale underlying that policy, and in order to avoid the appearance that an application made pursuant to this section was granted on the basis of such denial, the Commission will not consider any application that attempts to reargue or collaterally attack the findings that resulted in the Commission's bar order. (b) Scope of rule. (1) Such barred individual seeks to become associated with an entity that is not a member of a self-regulatory organization; or (2) The order contains a proviso that application may be made to the Commission after a specified period of time. (c) Form of application. (1) A copy of the Commission order imposing the bar; (2) An undertaking by the applicant to notify immediately the Commission in writing if any information submitted in support of the application becomes materially false or misleading while the application is pending; (3) The following forms, as appropriate: (i) A copy of a completed Form U-4, where the applicant's proposed association is with a broker-dealer or municipal securities dealer; (ii) A copy of a completed Form MSD-4, where the applicant's proposed association is with a bank municipal securities dealer; (iii) The information required by Form ADV, 17 CFR 279.1, with respect to the applicant, where the applicant's proposed association is with an investment adviser; (iv) The information required by Form TA-1, 17 CFR 249b.100, with respect to the applicant, where the applicant's proposed association is with a transfer agent; and (4) A written statement by the proposed employer that describes: (i) The terms and conditions of employment and supervision to be exercised over such applicant and, where applicable, by such applicant; (ii) The qualifications, experience, and disciplinary records of the proposed supervisor(s) of the applicant; (iii) The compliance and disciplinary history, during the two years preceding the filing of the application, of the office in which the applicant will be employed; and (iv) The names of any other associated persons in the same office who have previously been barred by the Commission, and whether they are to be supervised by the applicant. (d) Required showing. (e) Factors to be addressed. (1) The time period since the imposition of the bar; (2) Any restitution or similar action taken by the applicant to recompense any person injured by the misconduct that resulted in the bar; (3) The applicant's compliance with the order imposing the bar; (4) The applicant's employment during the period subsequent to imposition of the bar; (5) The capacity or position in which the applicant proposes to be associated; (6) The manner and extent of supervision to be exercised over such applicant and, where applicable, by such applicant; (7) Any relevant courses, seminars, examinations or other actions completed by the applicant subsequent to imposition of the bar to prepare for his or her return to the securities business; and (8) Any other information material to the application. (f) Notification to applicant and written statement. (g) Concurrent applications. [47 FR 610, Jan. 6, 1982, as amended at 85 FR 86478, Dec. 30, 2020] § 201.194 Applications by security-based swap dealers or major security-based swap participants for statutorily disqualified associated persons to effect or be involved in effecting security-based swaps. A security-based swap dealer or major security-based swap participant making an application under this section should refer to paragraph (i) of this section. (a) Scope of rule. (b) Required showing. (c) Exclusions. Exclusion for other persons. (2) Exclusion for certain associated natural persons. provided, however, (d) Form of application. (1) A copy of the order or other applicable document that resulted in the associated person being subject to a statutory disqualification; (2) An undertaking by the applicant to notify promptly the Commission in writing if any information submitted in support of the application becomes materially false or misleading while the application is pending; (3) A copy of the questionnaire or application for employment specified in 17 CFR 240.15Fb6-2(b), with respect to the associated person; and (4) If the associated person has been the subject of any proceeding resulting in the imposition of disciplinary sanctions during the five years preceding the filing of the application or is the subject of a pending proceeding by the Commission, the Commodity Futures Trading Commission, any federal or state regulatory or law enforcement agency, registered futures association (as provided in 7 U.S.C. 21), foreign financial regulatory authority, registered national securities association, or any other self-regulatory organization (as provided in 15 U.S.C. 78c(a)(26)), or commodities exchange, or any court, the applicant should include a copy of any order, decision, or document issued by the court, agency, self-regulatory organization (as provided in 15 U.S.C. 78c(a)(26)), or other relevant authority involved. (e) Written statement. (1) The associated person's compliance with any order resulting in statutory disqualification, including whether the associated person has paid fines or penalties, disgorged monies, made restitution or paid any other monetary compensation required by any such order; (2) The associated person's employment during the period subsequent to becoming subject to a statutory disqualification; (3) The capacity or position in which the person subject to a statutory disqualification proposes to be associated with the security-based swap dealer or major security-based swap participant; (4) The terms and conditions of employment and supervision to be exercised over such associated person and, where applicable, by such associated person; (5) The qualifications, experience, and disciplinary history of the proposed supervisor(s) of the associated person; (6) The compliance and disciplinary history, during the five years preceding the filing of the application, of the applicant; (7) The names of any other associated persons at the applicant who have previously been subject to a statutory disqualification and whether they are to be supervised by the associated person; (8) Any relevant courses, seminars, examinations or other actions completed by the associated person subsequent to becoming subject to a statutory disqualification to prepare for his or her participation in the security-based swap business; (9) A detailed statement of why the associated person should be permitted to effect or be involved in effecting security-based swaps on behalf of the security-based swap dealer or major security-based swap participant, notwithstanding the event resulting in statutory disqualification, including what steps the associated person or applicant has taken, or will take, to ensure that the statutory disqualification does not negatively affect the ability of the associated person to effect or be involved in effecting security-based swaps on behalf of the security-based swap dealer or major security-based swap participant in compliance with the applicable statutory and regulatory framework; (10) Whether the associated person has been involved in any litigation during the five years preceding the filing of the application concerning investment or investment-related activities or whether there are any unsatisfied judgments outstanding against the associated person concerning investment or investment-related activities, to the extent not otherwise covered by paragraph (e)(9) of this section. If so, the applicant should provide details regarding such litigation or unsatisfied judgments; and (11) Any other information that the applicant believes to be material to the application. (f) Prior applications or processes. (1) Pursuant to this section; (2) Pursuant to Rule of Practice 193 (17 CFR 201.193); (3) Pursuant to Investment Company Act Section 9(c) (15 U.S.C. 80a-9(c)); (4) Pursuant to Section 19(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78s(d)), Rule 19h-1 under the Securities Exchange Act of 1934 (17 CFR 240.19h-1), or a proceeding by a self-regulatory organization (as provided in 15 U.S.C. 78c(a)(26)) for a person to become or remain a member, or an associated person of a member, notwithstanding the existence of a statutory disqualification; or (5) By the Commodity Futures Trading Commission or a registered futures association (as provided in 7 U.S.C. 21) for registration, including as an associated person, or listing as a principal, notwithstanding the existence of a statutory disqualification, including: (i) Any order or other document providing that the associated person may be listed as a principal or registered as an associated person of a futures commission merchant, retail foreign exchange dealer, introducing broker, commodity pool operator, commodity trading advisor, or leverage transaction merchant, or any person registered as a floor broker or a floor trader, notwithstanding that the person is subject to a statutory disqualification from registration under Section 8a(2) or 8a(3) of the Commodity Exchange Act (7 U.S.C. 12a(2), (3)); or (ii) Any determination by a registered futures association (as provided in 7 U.S.C. 21) that had the associated person applied for registration as an associated person of a swap dealer or a major swap participant, or had a swap dealer or major swap participant listed the associated person as a principal in the swap dealer's or major swap participant's application for registration, notwithstanding statutory disqualification, the application of the associated person or of the swap dealer or major swap participant, as the case may be, would have been granted or denied. (g) Notification to applicant and written statement. (h) Notice in lieu of an application. (i) The person has been admitted to or continued in membership, or participation or association with a member, of a self-regulatory organization (as provided in 15 U.S.C. 78c(a)(26)), notwithstanding that such person is subject to a statutory disqualification under Section 3(a)(39)(A) through (F) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(39)(A) through (F)); (ii) The person has been granted consent to associate pursuant to the Rule of Practice 193 (17 CFR 201.193) or otherwise by the Commission; (iii) The person has been permitted to effect or be involved in effecting security-based swaps on behalf of a security-based swap dealer or major security-based swap participant pursuant to this section; or (iv) The person has been registered as, or listed as a principal of, a futures commission merchant, retail foreign exchange dealer, introducing broker, commodity pool operator, commodity trading advisor, or leverage transaction merchant, registered as an associated person of any of the foregoing, registered as or listed as a principal of a swap dealer or major swap participant, or registered as a floor broker or floor trader, notwithstanding that the person is subject to a statutory disqualification under Sections 8a(2) or 8a(3) of the Commodity Exchange Act (7 U.S.C. 12a(2), (3)), and the person is not subject to a Commission bar or suspension pursuant to Sections 15(b), 15B, 15E, 15F, or 17A of the Securities Exchange Act of 1934 (15 U.S.C. 78o(b), 78o-4, 78o-7, 78o-10, 78q-1), Section 9(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-9(b)), or Section 203(f) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-3(f)). (2) A security-based swap dealer or major security-based swap participant may permit a person associated with it who is subject to a statutory disqualification to effect or be involved in effecting security-based swaps on its behalf, without making an application pursuant to this section, as provided in paragraph (h)(1), subject to the following conditions: (i) All matters giving rise to a statutory disqualification under Section 3(a)(39)(A) through (F) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(39)(A) through (F)) have been subject to a process where the membership, association, registration or listing as a principal has been granted or otherwise approved by the Commission, Commodity Futures Trading Commission, self-regulatory organization (as provided in 15 U.S.C. 78c(a)(26)), or a registered futures association (as provided in 7 U.S.C. 21); (ii) The terms and conditions of the association with the security-based swap dealer or major security-based swap participant are the same in all material respects as those approved in connection with a previous order, notice or other applicable document granting the membership, association, registration or listing as a principal, as provided in paragraph (h)(1); and (iii) The security-based swap dealer or major security-based swap participant has filed a notice with the Commission. The notice shall be filed pursuant to Rules of Practice 151, 152, and 153 (17 CFR 201.151, 201.152, and 201.153). The notice must set forth, as appropriate: (A) The name of the security-based swap dealer or major security-based swap participant; (B) The name of the associated person subject to a statutory disqualification; (C) The name of the associated person's prospective supervisor(s) at the security-based swap dealer or major security-based swap participant; (D) The place of employment for the associated person subject to a statutory disqualification; and (E) Identification of any agency, self-regulatory organization (as provided in 15 U.S.C. 78c(a)(26)) or a registered futures association (as provided in 7 U.S.C. 21) that has indicated its agreement with the terms and conditions of the proposed association, registration or listing as a principal. (i) Note to § 201.194. (2) Subject to the exclusion provided in paragraph (c) of this section, in accordance with the authority granted in Section 15F(b)(6) of the Securities Exchange Act of 1934 (15 U.S.C. 78o-10(b)(6)), this section governs applications to the Commission by a security-based swap dealer or major security-based swap participant for the Commission to issue an order to permit a natural person who is an associated person of a security-based swap dealer or major security-based swap participant who is subject to a statutory disqualification to effect or be involved in effecting security-based swaps on behalf of the security-based swap dealer or major security- based swap participant. (3) Applications made pursuant to this section must show that it would be consistent with the public interest to permit the associated person of the security-based swap dealer or major security-based swap participant to effect or be involved in effecting security-based swaps on behalf of the security-based swap dealer or major security-based swap participant. In addition to the information specifically required by the rule, applications should be supplemented, where appropriate, by written statements of individuals who are competent to attest to the associated person's character, employment performance, and other relevant information. In addition to the information required by the rule, the Commission staff may request supplementary information to assist in the Commission's review. Intentional misstatements or omissions of fact may constitute criminal violations of 18 U.S.C. 1001, et seq. (4) The nature of the supervision that an associated person will receive or exercise as an associated person with a registered entity is an important matter bearing upon the public interest. In meeting the burden of showing that permitting the associated person to effect or be involved in effecting security-based swaps on behalf of the security-based swap dealer or major security-based swap participant is consistent with the public interest, the application and supporting documentation must demonstrate that the terms or conditions of association, procedures or proposed supervision, are reasonably designed to ensure that the statutory disqualification does not negatively affect the ability of the associated person to effect or be involved in effecting security-based swaps on behalf of the security-based swap dealer or major security-based swap participant in compliance with the applicable statutory and regulatory framework. (5) Normally, the applicant's burden of demonstrating that permitting the associated person to effect or be involved in effecting security-based swaps on behalf of the security-based swap dealer or major security-based swap participant is consistent with the public interest will be difficult to meet where the associated person is to be supervised by, or is to supervise, another statutorily disqualified individual. In addition, where there is an absence of supervision over the associated person who is subject to a statutory disqualification, the applicant's burden will be difficult to meet. The associated person may be limited to association in a specified capacity with a particular registered entity and may also be subject to specific terms and conditions. [84 FR 4944, Feb. 19, 2019, as amended at 85 FR 6349, Feb. 4, 2020] Initiation of Proceedings and Prehearing Rules § 201.200 Initiation of proceedings. (a) Order instituting proceedings: Notice and opportunity for hearing Generally. ex parte. (2) Stop order proceedings: Additional persons entitled to notice. (b) Content of order. (1) State the nature of any hearing; (2) State the legal authority and jurisdiction under which the hearing is to be held; (3) Contain a short and plain statement of the matters of fact and law to be considered and determined, unless the order directs an answer pursuant to § 201.220 in which case the order shall set forth the factual and legal basis alleged therefor in such detail as will permit a specific response thereto; and (4) State the nature of any relief or action sought or taken. (c) Time and place of hearing. (d) Amendment to order instituting proceedings By the Commission. (2) By the hearing officer. (e) Publication of notice of public hearings. SEC News Digest Federal Register. § 201.201 Consolidation and severance of proceedings. (a) Consolidation. (b) Severance. [60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004; 70 FR 72570, Dec. 5, 2005] § 201.202 Specification of procedures by parties in certain proceedings. (a) Motion to specify procedures. (1) Whether there should be an initial decision by a hearing officer; (2) Whether any interested division of the Commission may assist in the preparation of the Commission's decision; and (3) Whether there should be a 30-day waiting period between the issuance of the Commission's order and the date it is to become effective. (b) Objections; effect of failure to object. (c) Approval required. (d) Procedure upon agreement to waive an initial decision. [60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004; 88 FR 87282, Dec. 15, 2023] § 201.210 Parties, limited participants and amici curiae. (a) Parties in an enforcement or disciplinary proceeding, a proceeding to review a self- regulatory organization determination, a proceeding to review a Board determination, or a proceeding to review a determination by a security-based swap execution facility Generally. (2) Disgorgement proceedings. (b) Intervention as party Generally. (2) Intervention as of right. (c) Leave to participate on a limited basis. (1) Procedure. (2) Certain persons entitled to leave to participate. (3) Leave to participate in certain Commission proceedings by a representative of the United States Department of Justice, a United States Attorney's Office, or a criminal prosecutorial authority of any State or any other political subdivision of a State. (d) Amicus participation Availability. (i) A motion for leave to file the brief has been granted; (ii) The brief is accompanied by written consent of all parties; (iii) The brief is filed at the request of the Commission or the hearing officer; or (iv) The brief is presented by the United States or an officer or agency thereof, or by a State, Territory or Commonwealth. (2) Procedure. (e) Permission to state views. (f) Modification of participation provisions. [60 FR 32796, June 23, 1995, as amended at 63 FR 63405, Nov. 13, 1998; 69 FR 13177, Mar. 19, 2004; 70 FR 72570, Dec. 5, 2005; 76 FR 71875, Nov. 21, 2011; 88 FR 87282, Dec. 15, 2023] § 201.220 Answer to allegations. (a) When required. (b) When to file. (c) Contents; effect of failure to deny. (d) Motion for more definite statement. (e) Amendments. (f) Failure to file answer: Default. [81 FR 50234, July 29, 2016] § 201.221 Prehearing conference. (a) Purposes of conference. (1) Expediting the disposition of the proceeding; (2) Establishing early and continuing control of the proceeding by the hearing officer; and (3) Improving the quality of the hearing through more thorough preparation. (b) Procedure. (c) Subjects to be discussed. (1) Simplification and clarification of the issues; (2) Exchange of witness and exhibit lists and copies of exhibits; (3) Timing of expert witness disclosures and reports, if any; (4) Stipulations, admissions of fact, and stipulations concerning the contents, authenticity, or admissibility into evidence of documents; (5) Matters of which official notice may be taken; (6) The schedule for exchanging prehearing motions or briefs, if any; (7) The method of service for papers other than Commission orders; (8) The filing of any motion pursuant to § 201.250; (9) Settlement of any or all issues; (10) Determination of hearing dates; (11) Amendments to the order instituting proceedings or answers thereto; (12) Production, and timing for completion of the production, of documents as set forth in § 201.230, and prehearing production of documents in response to subpoenas duces tecum as set forth in § 201.232; (13) Specification of procedures as set forth in § 201.202; (14) Depositions to be conducted, if any, and date by which depositions shall be completed; and (15) Such other matters as may aid in the orderly and expeditious disposition of the proceeding. (d) Required prehearing conference. (e) Prehearing orders. (f) Failure to appear: default. [60 FR 32796, June 23, 1995, as amended at 63 FR 63405, Nov. 13, 1998; 81 FR 50234, July 29, 2016] § 201.222 Prehearing submissions and disclosures. (a) Submissions generally. (1) An outline or narrative summary of its case or defense; (2) The legal theories upon which it will rely; (3) Copies and a list of documents that it intends to introduce at the hearing; and (4) A list of witnesses who will testify on its behalf, including the witnesses' names, occupations, addresses and a brief summary of their expected testimony. (b) Expert witnesses Information to be supplied; reports. (i) A complete statement of all opinions the witness will express and the basis and reasons for them; (ii) The facts or data considered by the witness in forming them; (iii) Any exhibits that will be used to summarize or support them; and (iv) A statement of the compensation to be paid for the study and testimony in the case. (2) Drafts and communications protected. (ii) Communications between a party's attorney and the party's expert witness who is required to provide a report under this section need not be furnished regardless of the form of the communications, except if the communications relate to compensation for the expert's study or testimony, identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed, or identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. [60 FR 32796, June 23, 1995, as amended at 81 FR 50235, July 29, 2016] § 201.230 Enforcement and disciplinary proceedings: Availability of documents for inspection and copying. For purposes of this section, the term documents (a) Documents to be available for inspection and copying. (i) Each subpoena issued; (ii) Every other written request to persons not employed by the Commission to provide documents or to be interviewed; (iii) The documents turned over in response to any such subpoenas or other written requests; (iv) All transcripts and transcript exhibits; (v) Any other documents obtained from persons not employed by the Commission; and (vi) Any final examination or inspection reports prepared by the Office of Compliance Inspections and Examinations, the Division of Trading and Markets, or the Division of Investment Management, if the Division of Enforcement intends either to introduce any such report into evidence or to use any such report to refresh the recollection of any witness. (2) Nothing in this paragraph (a) shall limit the right of the Division to make available any other document, or shall limit the right of a respondent to seek access to or production pursuant to subpoena of any other document, or shall limit the authority of the hearing officer to order the production of any document pursuant to subpoena. (b) Documents that may be withheld or redacted. (i) The document is privileged; (ii) The document is an internal memorandum, note or writing prepared by a Commission employee, other than an examination or inspection report as specified in paragraph (a)(1)(vi) of this section, or is otherwise attorney work product and will not be offered in evidence; (iii) The document would disclose the identity of a confidential source; (iv) The document reflects only settlement negotiations between the Division of Enforcement and a person or entity who is not a respondent in the proceeding; or (v) The hearing officer grants leave to withhold a document or category of documents as not relevant to the subject matter of the proceeding or otherwise, for good cause shown. (2) Unless the hearing officer orders otherwise upon motion, the Division of Enforcement may redact information from a document if: (i) The information is among the categories set forth in paragraphs (b)(1)(i) through (v) of this section; or (ii) The information consists of the following with regard to a person other than the respondent to whom the information is being produced: (A) An individual's social-security number; (B) An individual's birth date; (C) The name of an individual known to be a minor; or (D) A financial account number, taxpayer-identification number, credit card or debit card number, passport number, driver's license number, or state-issued identification number other than the last four digits of the number. (3) Nothing in this paragraph (b) authorizes the Division of Enforcement in connection with an enforcement or disciplinary proceeding to withhold, contrary to the doctrine of Brady v. Maryland, (c) Withheld document list. (d) Timing of inspection and copying. (e) Place of inspection and copying. (f) Copying costs and procedures. http://www.sec.gov (g) Issuance of investigatory subpoenas after institution of proceedings. (h) Failure to make documents available—harmless error. [60 FR 32796, June 23, 1995; 60 FR 46499, Sept. 7, 1995, as amended at 68 FR 35789, June 17, 2003; 69 FR 13177, Mar. 19, 2004; 81 FR 50235, July 29, 2016; 84 FR 50738, Sept. 26, 2019] § 201.231 Enforcement and disciplinary proceedings: Production of witness statements. (a) Availability. statement (b) Failure to produce—harmless error. [60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004] § 201.232 Subpoenas. (a) Availability; procedure. (1) Unavailability of hearing officer. (2) Signing may be delegated. (b) Standards for issuance. (c) Service. (d) Tender of fees required. (e) Application to quash or modify Procedure. (2) Standards governing application to quash or modify. (3) Additional standards governing application to quash deposition notices or subpoenas filed pursuant to § 201.233(a). (i) The proposed deponent was a witness of or participant in any event, transaction, occurrence, act, or omission that forms the basis for any claim asserted by the Division of Enforcement, any defense, or anything else required to be included in an answer pursuant to § 201.220(c) by any respondent in the proceeding (this excludes a proposed deponent whose only knowledge of these matters arises from the Division of Enforcement's investigation or the proceeding); (ii) The proposed deponent is a designated as an “expert witness” under § 201.222(b); provided, however, that the deposition of an expert who is required to submit a written report under § 201.222(b) may only occur after such report is served; or (iii) The proposed deponent has custody of documents or electronic data relevant to the claims or defenses of any party (this excludes Division of Enforcement or other Commission officers or personnel who have custody of documents or data that was produced by the Division to the respondent). (f) Witness fees and mileage. [60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004; 81 FR 50235, July 29, 2016] § 201.233 Depositions upon oral examination. (a) Depositions upon written notice. (1) If the proceeding involves a single respondent, the respondent may file written notices to depose no more than three persons, and the Division of Enforcement may file written notices to depose no more than three persons. (2) If the proceeding involves multiple respondents, the respondents collectively may file joint written notices to depose no more than five persons, and the Division of Enforcement may file written notices to depose no more than five persons. The depositions taken under this paragraph (a)(2) shall not exceed a total of five depositions for the Division of Enforcement, and five depositions for all respondents collectively. (3) Additional depositions upon motion. (i) Procedure. (B) Upon consideration of the motion and any opposing papers, the hearing officer will issue an order either granting or denying the motion. The hearing officer shall consider the motion on an expedited basis. (C) The proceeding shall not automatically be stayed pending the determination of the motion. (ii) Grounds and standards for motion. (A) Identifying each of the witnesses whom the moving side plans to depose pursuant to paragraph (a)(1) or (2) of this section as well as the additional witnesses whom the side seeks to depose; (B) Describing the role of each witness and proposed additional witness; (C) Describing the matters concerning which each witness and proposed additional witness is expected to be questioned, and why the deposition of each witness and proposed additional witness is necessary for the moving side's arguments, claims, or defenses; and (D) Showing that the additional deposition(s) requested will not be unreasonably cumulative or duplicative. (iii) If the moving side proposes to take and submit the additional deposition(s) on written questions, as provided in § 201.234, the motion shall so state. The motion for additional depositions shall constitute a motion under § 201.234(a), and the moving party is required to submit its questions with its motion under this rule. The procedures for such a deposition shall be governed by § 201.234. (4) A deponent's attendance may be ordered by subpoena issued pursuant to the procedures in § 201.232; and (5) The Commission or hearing officer may rule on a motion that a deposition noticed under paragraph (a)(1) or (2) of this section shall not be taken upon a determination under § 201.232(e). The fact that a witness testified during an investigation does not preclude the deposition of that witness. (b) Depositions when witness is unavailable. (c) Service and contents of notice. (1) The name and address of the witness whose deposition is to be taken; (2) The time and place of the deposition; provided that a subpoena for a deposition may command a person to attend a deposition only as follows: (i) Within 100 miles of where the person resides, is employed, or regularly transacts business in person; (ii) Within the state where the person resides, is employed, or regularly transacts business in person, if the person is a party or a party's officer; (iii) At such other location that the parties and proposed deponent stipulate; or (iv) At such other location that the hearing officer or the Commission determines is appropriate; and (3) The manner of recording and preserving the deposition. (d) Producing documents. (e) Method of recording Method stated in the notice. (2) Additional method. (f) By remote means. (g) Deposition officer's duties Before the deposition. (i) The deposition officer's name and business address; (ii) The date, time, and place of the deposition; (iii) The deponent's name; (iv) The deposition officer's administration of the oath or affirmation to the deponent; and (v) The identity of all persons present. (2) Conducting the deposition; avoiding distortion. (3) After the deposition. (h) Order and record of the examination Order of examination. (2) Form of objections stated during the deposition. (i) Waiver of objections To the notice. (2) To the deposition officer's qualification. (i) Before the deposition begins; or (ii) Promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known. (3) To the taking of the deposition Objection to competence, relevance, or materiality. (ii) Objection to an error or irregularity. (A) It relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and (B) It is not timely made during the deposition. (4) To completing and returning the deposition. (j) Duration; cross-examination; motion to terminate or limit Duration. (2) Motion to terminate or limit Grounds. (ii) Order. (k) Review by the witness; changes Review; statement of changes. (i) To review the transcript or recording; and (ii) If there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. (2) Changes indicated in the deposition officer's certificate. (l) Certification and delivery; exhibits; copies of the transcript or recording Certification and delivery. (2) Documents and tangible things Originals and copies. (A) Offer copies to be marked, attached to the deposition, and then used as originals—after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or (B) Give all parties a fair opportunity to inspect and copy the originals after they are marked—in which event the originals may be used as if attached to the deposition. (ii) Order regarding the originals. (3) Copies of the transcript or recording. (m) Presentation of objections or disputes. [81 FR 50236, July 29, 2016] § 201.234 Depositions upon written questions. (a) Availability. (b) Procedure. (c) Additional requirements. [60 FR 32796, June 23, 1995, as amended at 81 FR 50238, July 29, 2016] § 201.235 Introducing prior sworn statements or declarations. (a) At a hearing, any person wishing to introduce a prior, sworn deposition taken pursuant to § 201.233 or § 201.234, investigative testimony, or other sworn statement or a declaration pursuant to 28 U.S.C. 1746, of a witness, not a party, otherwise admissible in the proceeding, may make a motion setting forth the reasons therefor. If only part of a statement or declaration is offered in evidence, the hearing officer may require that all relevant portions of the statement or declaration be introduced. If all of a statement or declaration is offered in evidence, the hearing officer may require that portions not relevant to the proceeding be excluded. A motion to introduce a prior sworn statement or declaration may be granted if: (1) The witness is dead; (2) The witness is out of the United States, unless it appears that the absence of the witness was procured by the party offering the prior sworn statement or declaration; (3) The witness is unable to attend or testify because of age, sickness, infirmity, imprisonment or other disability; (4) The party offering the prior sworn statement or declaration has been unable to procure the attendance of the witness by subpoena; or (5) In the discretion of the Commission or the hearing officer, it would be desirable, in the interests of justice, to allow the prior sworn statement or declaration to be used. In making this determination, due regard shall be given to the presumption that witnesses will testify orally in an open hearing. If the parties have stipulated to accept a prior sworn statement or declaration in lieu of live testimony, consideration shall also be given to the convenience of the parties in avoiding unnecessary expense. (b) Sworn statement or declaration of party or agent. [60 FR 32796, June 23, 1995, as amended at 81 FR 50238, July 29, 2016] § 201.240 Settlement. (a) Availability. (b) Procedure. (c) Consideration of offers of settlement. (2) Where a hearing officer is assigned to a proceeding, the interested division and the party submitting the offer may request that the hearing officer express his or her views regarding the appropriateness of the offer of settlement. A request for the hearing officer to express his or her views on an offer of settlement or otherwise to participate in a settlement conference constitutes a waiver by the persons making the request of any right to claim bias or prejudgment by the hearing officer based on the views expressed. (3) The interested division shall present the offer of settlement to the Commission with its recommendation, except that, if the division's recommendation is unfavorable, the offer shall not be presented to the Commission unless the person making the offer so requests. (4) By submitting an offer of settlement, the person making the offer waives, subject to acceptance of the offer: (i) All hearings pursuant to the statutory provisions under which the proceeding is to be or has been instituted; (ii) The filing of proposed findings of fact and conclusions of law; (iii) Proceedings before, and an initial decision by, a hearing officer; (iv) All post-hearing procedures; and (v) Judicial review by any court. (5) By submitting an offer of settlement the person further waives: (i) Such provisions of the Rules of Practice or other requirements of law as may be construed to prevent any member of the Commission's staff from participating in the preparation of, or advising the Commission as to, any order, opinion, finding of fact, or conclusion of law to be entered pursuant to the offer; and (ii) Any right to claim bias or prejudgment by the Commission based on the consideration of or discussions concerning settlement of all or any part of the proceeding. (6) If the Commission rejects the offer of settlement, the person making the offer shall be notified of the Commission's action and the offer of settlement shall be deemed withdrawn. The rejected offer shall not constitute a part of the record in any proceeding against the person making the offer, provided, however, that rejection of an offer of settlement does not affect the continued validity of waivers pursuant to paragraph (c)(5) of this section with respect to any discussions concerning the rejected offer of settlement. (7) Final acceptance of any offer of settlement will occur only upon the issuance of findings and an order by the Commission. § 201.250 Dispositive motions. (a) Motion for a ruling on the pleadings. (b) Motion for summary disposition in 30- and 75-day proceedings. (c) Motion for summary disposition in 120-day proceedings. (d) Motion for a ruling as a matter of law following completion of case in chief. (e) Length limitation for dispositive motions. (f) Opposition and reply length limitations response time. (1) Length limitations. (2) Response time. (ii) For motions under paragraph (c) of this section, any opposition must be filed within 21 days after service of such a motion, and any reply must be filed within seven days after service of any opposition. [81 FR 50239, July 29, 2016] Rules Regarding Hearings § 201.300 Hearings. Hearings for the purpose of taking evidence shall be held only upon order of the Commission. All hearings shall be conducted in a fair, impartial, expeditious and orderly manner. § 201.301 Hearings to be public. All hearings, except hearings on applications for confidential treatment filed pursuant to § 201.190, hearings held to consider a motion for a protective order pursuant to § 201.322, and hearings on ex parte § 201.302 Record of hearings. (a) Recordation. (b) Availability of a transcript. (c) Transcript correction. § 201.310 Failure to appear at hearings: Default. Any person named in an order instituting proceedings as a person against whom findings may be made or sanctions imposed who fails to appear at a hearing of which he or she has been duly notified may be deemed to be in default pursuant to § 201.155(a). A party may make a motion to set aside a default pursuant to § 201.155(b). § 201.320 Evidence: Admissibility. (a) Except as otherwise provided in this section, the Commission or the hearing officer may receive relevant evidence and shall exclude all evidence that is irrelevant, immaterial, unduly repetitious, or unreliable. (b) Subject to § 201.235, evidence that constitutes hearsay may be admitted if it is relevant, material, and bears satisfactory indicia of reliability so that its use is fair. [81 FR 50239, July 29, 2016] § 201.321 Evidence: Objections and offers of proof. (a) Objections. (1) Pursuant to interlocutory review in accordance with § 201.400; (2) In a proposed finding or conclusion filed pursuant to § 201.340; or (3) In a petition for Commission review of an initial decision filed in accordance with § 201.410. (b) Offers of proof. § 201.322 Evidence: Confidential information, protective orders. (a) Procedure. (b) Submission of confidential information. (1) A complete, sealed copy of the materials containing the information as to which a protective order is sought, with the allegedly confidential information marked as such, and with the first page of the document labeled “Under Seal.” If the movant seeks a protective order against disclosure to other parties as well as the public, copies of the documents shall not be served on other parties; and (2) A redacted copy of the materials containing the information as to which a protective order is sought, with the allegedly confidential information redacted. The redacted version shall indicate any omissions with brackets or ellipses, and its pagination and depiction of text on each page shall be identical to that of the sealed version. A redacted copy need not accompany a motion requesting a protective order if the materials would be redacted in their entirety. (c) Basis for issuance. (d) Requests for additional information supporting confidentiality. (e) Confidentiality of documents pending decision. [47 FR 610, Jan. 6, 1982, as amended at 85 FR 86480, Dec. 30, 2020] § 201.323 Evidence: Official notice. Official notice may be taken of any material fact which might be judicially noticed by a district court of the United States, any matter in the public official records of the Commission, or any matter which is peculiarly within the knowledge of the Commission as an expert body. If official notice is requested or taken of a material fact not appearing in the evidence in the record, the parties, upon timely request, shall be afforded an opportunity to establish the contrary. § 201.324 Evidence: Stipulations. The parties may, by stipulation, at any stage of the proceeding agree upon any pertinent facts in the proceeding. A stipulation may be received in evidence and, when received, shall be binding on the parties to the stipulation. § 201.325 Evidence: Presentation under oath or affirmation. A witness at a hearing for the purpose of taking evidence shall testify under oath or affirmation. § 201.326 Evidence: Presentation, rebuttal and cross-examination. In any proceeding in which a hearing is required to be conducted on the record after opportunity for hearing in accord with 5 U.S.C. 556(a), a party is entitled to present its case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as, in the discretion of the Commission or the hearing officer, may be required for a full and true disclosure of the facts. The scope and form of evidence, rebuttal evidence, if any, and cross-examination, if any, in any other proceeding shall be determined by the Commission or the hearing officer in each proceeding. § 201.340 Proposed findings, conclusions and supporting briefs. (a) Opportunity to file. (b) Procedure. (c) Time for filing. (1) At the end of each hearing, the hearing officer shall, by order, after consultation with the parties, prescribe the period within which proposed findings and conclusions and supporting briefs are to be filed. The party or parties directed to file first shall make its or their initial filing within 30 days of the end of the hearing unless the hearing officer, for good cause shown, permits a different period and sets forth in the order the reasons why the different period is necessary. (2) The total period within which all such proposed findings and conclusions and supporting briefs and any counter statements of proposed findings and conclusions and reply briefs are to be filed shall be no longer than 90 days after the close of the hearing unless the hearing officer, for good cause shown, permits a different period and sets forth in an order the reasons why the different period is necessary. § 201.350 Record in proceedings before hearing officer; retention of documents; copies. (a) Contents of the record. (1) The order instituting proceedings, each notice of hearing and any amendments; (2) Each application, motion, submission or other paper, and any amendments, motions, objections, and exceptions to or regarding them; (3) Each stipulation, transcript of testimony and document or other item admitted into evidence; (4) Each written communication accepted by the hearing officer pursuant to § 201.210; (5) With respect to a request to disqualify a hearing officer or to allow the hearing officer's withdrawal under § 201.112, each affidavit or transcript of testimony taken and the decision made in connection with the request; (6) All motions, briefs and other papers filed on interlocutory appeal; (7) All proposed findings and conclusions; (8) Each written order issued by the hearing officer or Commission; and (9) Any other document or item accepted into the record by the hearing officer. (b) Retention of documents not admitted. (c) Substitution of copies. [60 FR 32796, June 23, 1995, as amended at 69 FR 13178, Mar. 19, 2004] § 201.351 Transmittal of documents to Secretary; record index; electronic copy of exhibits; certification. (a) Transmittal from hearing officer to Secretary of partial record index. (b) Preparation, certification of record index. (c) Electronic exhibits. (1) Certification of Inability to Submit Exhibits Electronically. (2) Signature requirement. (3) Certification. (d) Final transmittal of record items to the Secretary. [60 FR 32796, June 23, 1995, as amended at 69 FR 13178, Mar. 19, 2004; 85 FR 86480, Dec. 30, 2020] § 201.360 Initial decision of hearing officer and timing of hearing. (a)(1) When required. (2) Time period for filing initial decision and for hearing Initial decision. (A) The completion of post-hearing briefing in a proceeding where the hearing has been completed; or (B) The completion of briefing on a § 201.250 motion in the event the hearing officer has determined that no hearing is necessary; or (C) The determination by the hearing officer that, pursuant to § 201.155, a party is deemed to be in default and no hearing is necessary. (ii) Hearing. 1/2 (3) Certification of extension; motion for extension. (ii) Either in addition to a certification of extension, or instead of a certification of extension, the Chief Administrative Law Judge may submit a motion to the Commission requesting an extension of the time period for filing the initial decision. First, the hearing officer presiding over the proceeding must consult with the Chief Administrative Law Judge. Following such consultation, the Chief Administrative Law Judge may determine, in his or her discretion, to submit a motion to the Commission requesting an extension of the time period for filing the initial decision. This motion may request an extension of any length but must be filed no later than 15 days prior to the expiration of the time specified in the certification of extension, or if there is no certification of extension, 30 days prior to the expiration of the time specified in the order instituting proceedings. The motion will be served upon all parties in the proceeding, who may file with the Commission statements in support of or in opposition to the motion. If the Commission determines that additional time is necessary or appropriate in the public interest, the Commission shall issue an order extending the time period for filing the initial decision. (iii) The provisions of this paragraph (a)(3) confer no rights on respondents. (b) Content. (1) The Commission will enter an order of finality as to each party unless a party or an aggrieved person entitled to review timely files a petition for review of the initial decision or a motion to correct a manifest error of fact in the initial decision with the hearing officer, or the Commission determines on its own initiative to review the initial decision; and (2) If a party or an aggrieved person entitled to review timely files a petition for review or a motion to correct a manifest error of fact in the initial decision with the hearing officer, or if the Commission takes action to review as to a party or an aggrieved person entitled to review, the initial decision shall not become final as to that party or person. (c) Filing, service and publication. (d) Finality. (2) If a party or aggrieved person entitled to review fails to file timely a petition for review or a motion to correct a manifest error of fact in the initial decision, and if the Commission does not order review of a decision on its own initiative, the Commission will issue an order that the decision has become final as to that party. The decision becomes final upon issuance of the order. The order of finality shall state the date on which sanctions, if any, take effect. Notice of the order shall be published on the SEC website. [60 FR 32796, June 23, 1995, as amended at 68 FR 35789, June 17, 2003; 69 FR 13178, Mar. 19, 2004; 81 FR 50239, July 29, 2016; 83 FR 25366, June 1, 2018] Appeal to the Commission and Commission Review § 201.400 Interlocutory review. (a) Availability. (b) Expedited consideration. (c) Certification process. (1) His or her ruling would compel testimony of Commission members, officers or employees or the production of documentary evidence in their custody; or (2) Upon application by a party, within five days of the hearing officer's ruling, the hearing officer is of the opinion that: (i) The ruling involves a controlling question of law as to which there is substantial ground for difference of opinion; and (ii) An immediate review of the order may materially advance the completion of the proceeding. (d) Proceedings not stayed. [60 FR 32796, June 23, 1995, as amended at 69 FR 13178, Mar. 19, 2004] § 201.401 Consideration of stays. (a) Procedure. (b) Scope of relief. (c) Stay of a Commission order. (d) Stay of an action by a self-regulatory organization Availability. (2) Summary entry. (3) Expedited consideration. (e) Lifting of stay of action by the Public Company Accounting Oversight Board Availability. (2) Summary action. (3) Expedited consideration. (f) Lifting of stay of action by a security-based swap execution facility. Availability. (2) Summary action. (3) Expedited consideration. [60 FR 32796, June 23, 1995, as amended at 69 FR 13178, Mar. 19, 2004; 88 FR 87282, Dec. 15, 2023] § 201.410 Appeal of initial decisions by hearing officers. (a) Petition for review; when available. (b) Procedure. (c) Length limitation. (d) Financial disclosure statement requirement. (e) Prerequisite to judicial review. [60 FR 32796, June 23, 1995, as amended at 69 FR 13179, Mar. 19, 2004; 81 FR 50240, July 29, 2016] § 201.411 Commission consideration of initial decisions by hearing officers. (a) Scope of review. (b) Standards for granting review pursuant to a petition for review Mandatory review. (i) Denies any request for action pursuant to Section 8(a) or Section 8(c) of the Securities Act of 1933, 15 U.S.C. 77h(a), (c), or the first sentence of Section 12(d) of the Exchange Act, 15 U.S.C. 78 l (ii) Suspends trading in a security pursuant to Section 12(k) of the Exchange Act, 15 U.S.C. 78l(k); or (iii) Is in a case of adjudication (as defined in 5 U.S.C. 551) not required to be determined on the record after notice and opportunity for hearing (except to the extent there is involved a matter described in 5 U.S.C. 554(a) (1) through (6)). (2) Discretionary review. (i) A prejudicial error was committed in the conduct of the proceeding; or (ii) The decision embodies: (A) A finding or conclusion of material fact that is clearly erroneous; or (B) A conclusion of law that is erroneous; or (C) An exercise of discretion or decision of law or policy that is important and that the Commission should review. (c) Commission review other than pursuant to a petition for review. (d) Limitations on matters reviewed. (e) Summary affirmance. (2) Upon consideration of the motion and any opposition or upon its own initiative, the Commission may summarily affirm an initial decision. The Commission may grant summary affirmance if it finds that no issue raised in the initial decision warrants consideration by the Commission of further oral or written argument. The Commission will decline to grant summary affirmance upon a reasonable showing that a prejudicial error was committed in the conduct of the proceeding or that the decision embodies an exercise of discretion or decision of law or policy that is important and that the Commission should review. (f) Failure to obtain a majority. [60 FR 32796, June 23, 1995, as amended at 69 FR 13179, Mar. 19, 2004; 70 FR 72570, Dec. 5, 2005; 81 FR 50240, July 29, 2016] § 201.420 Appeal of determinations by self-regulatory organizations. (a) Application for review; when available. (1) Final disciplinary sanction; (2) Denial or conditioning of membership or participation; (3) Prohibition or limitation in respect to access to services offered by that self-regulatory organization or a member thereof; or (4) Bar from association as to which a notice is required to be filed with the Commission pursuant to Section 19(d)(1) of the Exchange Act, 15 U.S.C. 78s(d)(1). (b) Procedure. (c) Application. (d) Determination not stayed. (e) Certification of the record; service of the index. (1) The self-regulatory organization also shall file electronically with the Commission one copy of an index to such record, and shall serve upon each party one copy of the index. If such index contains any sensitive personal information, as defined in paragraph (e)(2) of this section, the self-regulatory organization also shall file electronically with the Commission one redacted copy of such index, subject to the requirements of paragraph (e)(2) of this section. (2) Sensitive personal information. (i) Exceptions. (A) The last four digits of a financial account number, credit card or debit card number, passport number, driver's license number, and state-issued identification number; (B) Home addresses and telephone numbers of parties and persons filing documents with the Commission; (C) Business telephone numbers; and (D) Copies of unredacted filings by regulated entities or registrants that are available on the Commission's public website. (f) Certification. [60 FR 32796, June 23, 1995, as amended at 69 FR 13179, Mar. 19, 2004; 81 FR 50240, July 29, 2016; 85 FR 86480, Dec. 30, 2020] § 201.421 Commission consideration of determinations by self-regulatory organizations. (a) Commission review other than pursuant to a petition for review. (b) Supplemental briefing. § 201.430 Appeal of actions made pursuant to delegated authority. (a) Scope of rule. (b) Procedure Notice of intention to petition for review. Federal Register, (2) Petition for review. (c) Prerequisite to judicial review. [60 FR 32796, June 23, 1995; 60 FR 46500, Sept. 7, 1995, as amended at 69 FR 13179, Mar. 19, 2004; 70 FR 72570, Dec. 5, 2005; 75 FR 47449, Aug. 6, 2010; 91 FR 45190, July 20, 2026] § 201.431 Commission consideration of actions made pursuant to delegated authority. (a) Scope of review. (b) Standards for granting review pursuant to a petition for review Mandatory review. (2) Discretionary review. (c) Commission review other than pursuant to a petition for review. (d) Required items in an order for review. (e) Automatic stay of delegated action. (1) To grant a stay of action by the Commission or a self-regulatory organization as authorized by 17 CFR 200.30-14(h)(5) and (6); (2) To commence a subpoena enforcement proceeding as authorized by 17 CFR 200.30-4(a)(10); or (3) To determine the effectiveness of a registration statement, or a post-effective amendment thereto, or the qualification of an offering statement, or a post-qualification amendment thereto, as authorized by 17 CFR 200.30-1(a)(1), 200.30-1(a)(5), 200.30-1(b)(2), 200.30-1(f)(1) and 200.30-1(f)(6), or 17 CFR 200.30-5(b), 200.30-5(c)(3), 200.30-5(c)(4), and 200.30-5(c)(6). (f) Effectiveness of stay or of Commission decision to modify or reverse a delegated action. [60 FR 32796, June 23, 1995; 60 FR 46500, Sept. 7, 1995; 90 FR 45125, Sept. 19, 2025; 91 FR 45190, July 20, 2026] § 201.440 Appeal of determinations by the Public Company Accounting Oversight Board. (a) Application for review; when available. (b) Procedure. (c) Stay of determination. (d) Certification of the record; service of the index. (1) The Board shall file electronically with the Commission one copy of an index of such record, and shall serve one copy of the index on each party. If such index contains any sensitive personal information, as defined in paragraph (d)(2) of this section, the Board also shall file electronically with the Commission one redacted copy of such index, subject to the requirements of paragraphs (d)(2) of this section. (2) Sensitive personal information. (i) Exceptions. (A) The last four digits of a financial account number, credit card or debit card number, passport number, driver's license number, and state-issued identification number; (B) Home addresses and telephone numbers of parties and persons filing documents with the Commission; (C) Business telephone numbers; and (D) Copies of unredacted filings by regulated entities or registrants that are available on the Commission's public website. (e) Certification. [69 FR 13179, Mar. 19, 2004, as amended at 81 FR 50241, July 29, 2016; 85 FR 86481, Dec. 30, 2020] § 201.441 Commission consideration of Board determinations. (a) Commission review other than pursuant to an application for review. (b) Supplemental briefing. [69 FR 13179, Mar. 19, 2004] § 201.442 Appeal of determination by security-based swap execution facility. (a) Application for review; when available. (1) Final disciplinary action, as defined in § 240.835(b)(1) of this chapter; (2) Final action with respect to a denial or conditioning of membership, as defined in § 240.835(b)(2) of this chapter; or (3) Final action with respect to a denial or limitation of access to any service offered by the security-based swap execution facility, as defined in § 240.835(b)(2) of this chapter. (b) Procedure. (c) Stay of determination. (d) Certification of the record; service of the index. (1) The security-based swap execution facility shall file electronically with the Commission one copy of an index of such record in the form and manner specified by the Commission and shall serve one copy of the index on each party. If such index contains any sensitive personal information, as defined in paragraph (d)(2) of this section, the security-based swap execution facility also shall file electronically with the Commission one redacted copy of such index, subject to the requirements of paragraph (d)(2) of this section. (2) Sensitive personal information (i) Exceptions. (A) The last four digits of a financial account number, credit card or debit card number, passport number, driver's license number, and State-issued identification number; (B) Home addresses and telephone numbers of parties and persons filing documents with the Commission; and (C) Business telephone numbers. (ii) [Reserved] (e) Certification. [88 FR 87282, Dec. 15, 2023] § 201.443 Commission consideration of security-based swap execution facility determinations. (a) Commission review other than pursuant to an application for review. (b) Supplemental briefing. [88 FR 87283, Dec. 15, 2023] § 201.450 Briefs filed with the Commission. (a) Briefing schedule order. (1) At the time the Commission orders review on its own initiative pursuant to §§ 201.411 or 201.421, or orders interlocutory review on its own motion pursuant to § 201.400(a); or (2) Within 21 days, or such longer time as provided by the Commission, after: (i) The last day permitted for filing a petition for review pursuant to § 201.410(b) or a brief in opposition to a petition for review pursuant to § 201.410(d); (ii) Receipt by the Commission of an index to the record of a determination of a self-regulatory organization filed pursuant to § 201.420(d); (iii) Receipt by the Commission of an index to the record of a determination by the Board filed pursuant to § 201.440(d); (iv) Receipt by the Commission of an index to the record of a determination by a security-based swap execution facility filed pursuant to § 201.442(d). (v) Receipt by the Commission of the mandate of a court of appeals with respect to a judicial remand; or (vi) Certification of a ruling for interlocutory review pursuant to § 201.400(c). (b) Contents of briefs. (c) Length limitation. (d) Certificate of compliance. [60 FR 32796, June 23, 1995, as amended at 68 FR 35789, June 17, 2003; 69 FR 13180, Mar. 19, 2004; 81 FR 50241, July 29, 2016; 88 FR 87283, Dec. 15, 2023] § 201.451 Oral argument before the Commission. (a) Availability. (b) Procedure. (c) Time allowed. (d) Participation of Commissioners. [60 FR 32796, June 23, 1995, as amended at 69 FR 13180, Mar. 19, 2004] § 201.452 Additional evidence. Upon its own motion or the motion of a party, the Commission may allow the submission of additional evidence. A party may file a motion for leave to adduce additional evidence at any time prior to issuance of a decision by the Commission. Such motion shall show with particularity that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence previously. The Commission may accept or hear additional evidence, may remand the proceeding to a self-regulatory organization, or may remand or refer the proceeding to a hearing officer for the taking of additional evidence, as appropriate. § 201.460 Record before the Commission. The Commission shall determine each matter on the basis of the record. (a) Contents of the record. (i) All items part of the record below in accordance with § 201.350; (ii) Any petitions for review, cross-petitions or oppositions; and (iii) All briefs, motions, submissions and other papers filed on appeal or review. (2) In a proceeding for final decision before the Commission reviewing a determination by a self-regulatory organization, the record shall consist of: (i) The record certified pursuant to § 201.420(d) by the self-regulatory organization; (ii) Any application for review; and (iii) Any submissions, moving papers, and briefs filed on appeal or review. (3) In a proceeding for final decision before the Commission reviewing a determination of the Board, the record shall consist of: (i) The record certified pursuant to § 201.440(d) by the Board; (ii) Any application for review; and (iii) Any submissions, moving papers, and briefs filed on appeal or review. (4) In a proceeding for final decision before the Commission reviewing a determination of a security-based swap execution facility, the record shall consist of: (i) The record certified pursuant to § 201.442(d) by the security-based swap execution facility; (ii) Any application for review; and (iii) Any submissions, moving papers, and briefs filed on appeal or review. (b) Transmittal of record to Commission. (c) Review of documents not admitted. (1) The date upon which the Commission's order becomes final, or (2) The conclusion of any judicial review of that order. [60 FR 32796, June 23, 1995, as amended at 69 FR 13180, Mar. 19, 2004; 88 FR 87232, Dec. 15, 2023] § 201.470 Reconsideration. (a) Scope of rule. (b) Procedure. [60 FR 32796, June 23, 1995, as amended at 69 FR 13180, Mar. 19, 2004; 70 FR 72570, Dec. 5, 2005] § 201.490 Receipt of petitions for judicial review pursuant to 28 U.S.C. 2112(a)(1). The Commission officer and office designated pursuant to 28 U.S.C. 2112(a)(1) to receive copies of petitions for review of Commission orders from the persons instituting review in a court of appeals, are the Secretary and the Office of the Secretary at the Commission's Headquarters. Ten copies of each petition shall be submitted. Each copy shall state on its face that it is being submitted to the Commission pursuant to 28 U.S.C. 2112 by the person or persons who filed the petition in the court of appeals. Rules Relating to Temporary Orders and Suspensions § 201.500 Expedited consideration of proceedings. Consistent with the Commission's or the hearing officer's other responsibilities, every hearing shall be held and every decision shall be rendered at the earliest possible time in connection with: (a) An application for a temporary sanction, as defined in § 201.101(a), or a proceeding to determine whether a temporary sanction should be made permanent; (b) A motion or application to review an order suspending temporarily the effectiveness of an exemption from registration pursuant to Regulations A, B, E or F under the Securities Act, §§ 230.258, 230.336, 230.610 or 230.656 of this chapter; or, (c) A motion to or petition to review an order suspending temporarily the privilege of appearing before the Commission under § 201.102(e)(3), or a sanction under § 201.180(a)(1). § 201.510 Temporary cease-and-desist orders: Application process. (a) Procedure. ex parte. (b) Accompanying documents. ex parte, (c) With whom filed. (d) Record of proceedings. ex parte § 201.511 Temporary cease-and-desist orders: Notice; procedures for hearing. (a) Notice: how given. ex parte, (b) Hearing before the Commission. (c) Presiding officer: designation. (d) Procedure at hearing. (2) Each Commissioner present at the hearing shall be afforded a reasonable opportunity to ask questions of witnesses, if any, or of counsel. (3) A party or witness may participate by telephone. Alternative means of remote access, including a video link, shall be permitted in the Commission's discretion. Factors the Commission may consider in determining whether to permit alternative means of remote access include, but are not limited to, whether allowing an alternative means of access will delay the hearing, whether the alternative means is reliable, and whether the party proposing its use has made arrangements to pay for its cost. (4) After a hearing has begun, the Commission may, on its own motion, or the motion of a party, assign a hearing officer to preside at the taking of oral testimony or other evidence and to certify the record of such testimony or other evidence to the Commission within a fixed period of time. No recommended or initial decision shall be made by such a hearing officer. § 201.512 Temporary cease-and-desist orders: Issuance after notice and opportunity for hearing. (a) Basis for issuance. (b) Content, scope and form of order. (1) Describe the basis for its issuance, including the alleged or threatened violations and the harm that is likely to result without the issuance of an order; (2) Describe in reasonable detail, and not by reference to the order instituting proceedings or any other document, the act or acts the respondent is to take or refrain from taking; and (3) Be indorsed with the date and hour of issuance. (c) Effective upon service. (d) Service: how made. (e) C ommission review. § 201.513 Temporary cease-and-desist orders: Issuance without prior notice and opportunity for hearing. In addition to the requirements for issuance of a temporary cease-and-desist order set forth in § 201.512, the following requirements shall apply if a temporary cease-and-desist order is to be entered without prior notice and opportunity for hearing: (a) Basis for issuance without prior notice and opportunity for hearing. (b) Content of the order. ex parte (c) Hearing before the Commission. (d) Presiding officer, procedure at hearing. § 201.514 Temporary cease-and-desist orders: Judicial review; duration. (a) Availability of judicial review. (b) Duration. (1) The completion of the proceedings whether a permanent order shall be entered; or (2) 180 days, or such longer time as consented to by the respondent, after issuance of a briefing schedule order pursuant to § 201.540(b), if an initial decision whether a permanent order should be entered is appealed. § 201.520 Suspension of registration of brokers, dealers, or other Exchange Act-registered entities: Application. (a) Procedure. (b) Accompanying documents. (c) With whom filed. (d) Record of hearings. § 201.521 Suspension of registration of brokers, dealers, or other Exchange Act-registered entities: Notice and opportunity for hearing on application. (a) How given. (b) Hearing: before whom held. (c) Presiding officer: designation. (d) Procedure at hearing. (2) Each Commissioner present at the hearing shall be afforded a reasonable opportunity to ask questions of witnesses, if any, or counsel. (3) A party or witness may participate by telephone. Alternative means of remote access, including a video link, shall be permitted in the Commission's discretion. Factors the Commission may consider in determining whether to permit alternative means of remote access include, but are not limited to, whether allowing an alternative means of access will delay the hearing, whether the alternative means is reliable, and whether the party proposing its use has made arrangements to pay for its cost. (4) After a hearing has begun, the Commission may, on its own motion or the motion of a party, assign a hearing officer to preside at the taking of oral testimony or other evidence and to certify the record of such testimony or other evidence to the Commission within a fixed period of time. No recommended or initial decision shall be made. § 201.522 Suspension of registration of brokers, dealers, or other Exchange Act-registered entities: Issuance and review of order. (a) Basis for issuance. (b) Content, scope and form of order. (1) Describe the basis for its issuance, including the alleged or threatened violations and the harm that is likely to result without the issuance of an order; (2) Describe in reasonable detail, and not by reference to the order instituting proceedings or any other document, the act or acts the respondent is to take or refrain from taking; and (3) Be indorsed with the date and hour of issuance. (c) Effective upon service. (d) Service: how made. (e) Commission review. § 201.523 [Reserved] § 201.524 Suspension of registrations: Duration. Unless set aside, limited or suspended by order of the Commission, a court of competent jurisdiction, or a hearing officer acting pursuant to § 201.531, an order suspending a registration shall remain effective and enforceable until the earlier of: (a) The completion of the proceedings whether the registration shall be permanently revoked; or (b) 180 days, or such longer time as consented to by the respondent, after issuance of a briefing schedule order pursuant to § 201.540(b), if an initial decision whether the registration shall be permanently revoked is appealed. § 201.530 Initial decision on permanent order: Timing for submitting proposed findings and preparation of decision. Unless otherwise ordered by the Commission or hearing officer, if a temporary cease-and-desist order or suspension of registration order is in effect, the following time limits shall apply to preparation of an initial decision as to whether such order should be made permanent: (a) Proposed findings and conclusions and briefs in support thereof shall be filed 30 days after the close of the hearing; (b) The record in the proceedings shall be served by the Secretary upon the hearing officer three days after the date for the filing of the last brief called for by the hearing officer; and (c) The initial decision shall be filed with the Secretary at the earliest possible time, but in no event more than 30 days after service of the record, unless the hearing officer, by order, shall extend the time for good cause shown for a period not to exceed 30 days. § 201.531 Initial decision on permanent order: Effect on temporary order. (a) Specification of permanent sanction. (1) Which terms or conditions of a temporary cease-and-desist order, if any, shall become permanent; and (2) Whether a temporary suspension of a respondent's registration, if any, shall be made a permanent revocation of registration. (b) Modification of temporary order. § 201.540 Appeal and Commission review of initial decision making a temporary order permanent. (a) Petition for review. (b) Review procedure. § 201.550 Summary suspensions pursuant to Exchange Act Section 12(k)(1)(A). (a) Petition for termination of suspension. l (b) Commission consideration of a petition. Rules Regarding Disgorgement and Penalty Payments § 201.600 Interest on sums disgorged. (a) Interest required. (b) Rate of interest. § 201.601 Prompt payment of disgorgement, interest and penalties. (a) Timing of payments. (b) Stays. (c) Method of making payment. [60 FR 32796, June 23, 1995, as amended at 69 FR 13180, Mar. 19, 2004; 70 FR 72570, Dec. 5, 2005] §§ 201.610-201.614 [Reserved] § 201.620 [Reserved] § 201.630 Inability to pay disgorgement, interest or penalties. (a) Generally. (b) Financial disclosure statement. see (c) Confidentiality. (d) Service required. (e) Failure to file required financial information: sanction. § 201.700 Initiation of proceedings for SRO proposed rule changes and for proposed NMS plans and plan amendments. (a) Rules of Practice. (1) Rule 103, 17 CFR 201.103 (Construction of Rules); (2) Rule 104, 17 CFR 201.104 (Business Hours); and (3) Rule 160, 17 CFR 201.160 (Time Computation). (b) Institution of proceedings; notice and opportunity to submit written views Generally. Federal Register (i) Prior to notice. Federal Register, (ii) Subsequent to notice. Federal Register, Federal Register (iii) Service of an order instituting proceedings. Federal Register (2) Notice of the grounds for disapproval under consideration. (3) Demonstration of consistency with the Exchange Act. (ii) The burden to demonstrate that a NMS plan filing is consistent with the Exchange Act and the rules and regulations issued thereunder that are applicable to NMS plans is on the plan participants that filed the NMS plan filing. In particular, these plan participants must explain why the NMS plan filing is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to NMS plans. A mere assertion that the NMS plan filing is consistent with those requirements is not sufficient. Instead, the description of the NMS plan filing, its purpose and operation, its effect, and a legal analysis of its consistency with applicable requirements must all be sufficiently detailed and specific to support an affirmative Commission finding. Any failure of the plan participants that filed the NMS plan filing to provide such detail and specificity may result in the Commission not having a sufficient basis to make an affirmative finding that a NMS plan filing is consistent with the Exchange Act and the rules and regulations issued thereunder that are applicable to NMS plans. (c) Conduct of hearings Initial comment period in writing. (i) The self-regulatory organization that submitted the proposed rule change may file a written statement in support of its proposed rule change demonstrating, in specific detail, how such proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to the self-regulatory organization, including a response to each of the grounds for disapproval under consideration. Such statement may include specific representations or undertakings by the self-regulatory organization. The Commission will specify in the summary of the grounds for disapproval under consideration the length of the initial comment period. (ii) The NMS plan participants may file a written statement in support of a NMS plan filing demonstrating, in specific detail, how such NMS plan filing is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to NMS plans, including a response to each of the grounds for disapproval under consideration. Such statement may include specific representations or undertakings by the plan participants. The Commission will specify in the summary of the grounds for disapproval under consideration the length of the initial comment period. (2) Oral. (3) Rebuttal. (ii) At the end of the initial comment period, the NMS plan participants will be given an opportunity to respond to any comments received. The plan participants may voluntarily file, or the Commission may request the plan participants to file, a response to a comment received regarding any aspect of such NMS plan filing under consideration to assist the Commission in determining whether such NMS plan filing should be disapproved. The Commission will specify in the summary of the grounds for disapproval under consideration the length of the rebuttal period. (4) Non-response. (ii) Any failure by the NMS plan participants to provide a complete response, within the applicable time period specified, to a comment letter received or to the Commission's grounds for disapproval under consideration may result in the Commission not having a sufficient basis to make an affirmative finding that a NMS plan filing is consistent with the Exchange Act and the rules and regulations issued thereunder that are applicable to NMS plans. (d) Record before the Commission Filing of papers with the Commission. (2) Public availability of materials received. (3) Record before the Commission. (i) The record shall consist of the proposed rule change filed on Form 19b-4 by the self-regulatory organization, including all attachments and exhibits thereto, and all written materials received from any interested parties on the proposed rule change, including the self-regulatory organization that filed the proposed rule change, through the means identified by the Commission as provided in paragraph (d)(1) of this section, as well as any written materials that reflect communications between the Commission and any interested parties. (ii) The record shall consist of the NMS plan filing filed by the plan participants, including all attachments and exhibits thereto, and all written materials received from any interested parties on such NMS plan filing, including the plan participants, through the means identified by the Commission as provided in paragraph (d)(1) of this section, as well as any written materials that reflect communications between the Commission and any interested parties. (e) Amended notice not required. [76 FR 4070, Jan. 24, 2011, as amended at 85 FR 65495, Oct, 15, 2020] § 201.701 Issuance of order. (a) At any time following conclusion of the rebuttal period specified in 17 CFR 201.700(c)(3)(i), the Commission may issue an order approving or disapproving the self-regulatory organization's proposed rule change together with a written statement of the reasons therefor. (b) At any time following conclusion of the rebuttal period specified in 17 CFR 201.700(c)(3)(ii), the Commission may issue an order approving or disapproving the proposed national market system plan or proposed amendment to an effective national market system plan together with a written statement of the reasons therefor. [85 FR 65497, Oct. 15, 2020] Informal Procedures and Supplementary Information Concerning Adjudicatory Proceedings § 201.900 Informal procedures and supplementary information concerning adjudicatory proceedings. (a) Guidelines for the timely completion of proceedings. (i) To the extent possible, a decision by the Commission on review of an interlocutory matter should be completed within 45 days of the date set for filing the final brief on the matter submitted for review. (ii) To the extent possible, a decision by the Commission on a motion to stay a decision that has already taken effect or that will take effect within five days of the filing of the motion, should be issued within five days of the date set for filing of the opposition to the motion for a stay. If the decision complained of has not taken effect, the Commission's decision should be issued within 45 days of the date set for filing of the opposition to the motion for a stay. (iii) Ordinarily, a decision by the Commission with respect to an appeal from the initial decision of a hearing officer, a review of a determination by a self-regulatory organization or the Public Company Accounting Oversight Board, or a remand of a prior Commission decision by a court of appeals will be issued within eight months from the completion of briefing on the petition for review, application for review, or remand order. If the Commission determines that the complexity of the issues presented in a petition for review, application for review, or remand order warrants additional time, the decision of the Commission in that matter may be issued within ten months of the completion of briefing. (iv) If the Commission determines that a decision by the Commission cannot be issued within the period specified in paragraph (a)(1)(iii) of this section, the Commission may extend that period by orders as it deems appropriate in its discretion. The guidelines in this paragraph (a) confer no rights or entitlements on parties or other persons. (2) The guidelines in this paragraph (a) do not create a requirement that each portion of a proceeding or the entire proceeding be completed within the periods described. Among other reasons, Commission review may require additional time because a matter is unusually complex or because the record is exceptionally long. In addition, fairness is enhanced if the Commission's deliberative process is not constrained by an inflexible schedule. In some proceedings, deliberation may be delayed by the need to consider more urgent matters, to permit the preparation of dissenting opinions, or for other good cause. The guidelines will be used by the Commission as one of several criteria in monitoring and evaluating its adjudicatory program. The guidelines will be examined periodically, and, if necessary, readjusted in light of changes in the pending caseload and the available level of staff resources. (b) Reports to the Commission on pending cases. See (c) Publication of information concerning the pending case docket. [81 FR 50241, July 29, 2016] Subpart E—Adjustment of Civil Monetary Penalties Authority: 28 U.S.C. 2461 note. Source: 81 FR 43045, July 1, 2016, unless otherwise noted. § 201.1001 Adjustment of civil monetary penalties. (a) For violations from December 10, 1996, through November 2, 2015: As required by the Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, the Commission has adjusted the maximum amounts of all civil monetary penalties it administers under the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Investment Advisers Act of 1940, and certain penalties under the Sarbanes-Oxley Act of 2002 for inflation in the releases and prior regulations listed in the footnotes to Table I. The penalty amounts provided in Table I apply to violations of these statutes that occurred from December 10, 1996, through November 2, 2015, with each column listing the penalty amounts for violations that occurred in a particular time frame. To determine the penalty amounts for violations that occurred prior to December 10, 1996, please refer to the applicable statutory text. To determine penalty amounts for violations after November 2, 2015, please refer to paragraph (b) of this section. (b) For violations after November 2, 2015: The Federal Civil Penalties Inflation Adjustment Act, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (28 U.S.C. 2461 note), requires that civil monetary penalties be adjusted on an annual basis for inflation. Pursuant to this requirement, the maximum amounts of all civil monetary penalties under the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, and the Investment Advisers Act of 1940, and certain penalties under the Sarbanes-Oxley Act of 2002 will be adjusted annually for inflation. Notice of these adjusted penalty amounts will be published by the Commission in the Federal Register https://www.sec.gov/enforce/civil-penalties-inflation-adjustments.htm. (1) The maximum penalty amount for the previous calendar year; or (2) An amount adjusted for inflation, calculated by multiplying the maximum penalty amount for the previous calendar year by the percentage by which the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October preceding the current calendar year exceeds the CPI-U for the month of October of the calendar year two years prior to the current calendar year, adding that amount to the amount for the previous calendar year, and rounding the total to the nearest dollar. Table I to 201.1001—Civil Monetary Penalty Inflation Adjustments for Violations From December 10, 1996, Through November 2, 2015 U.S. Code citation Civil monetary penalty Date of violation and corresponding penalty Dec. 10, 1996- i Feb. 3, 2001- ii Feb. 15, 2005- iii Mar. 4, 2009- iv Mar. 6, 2013- v 15 U.S.C. 77h-1(g) (Securities Act Sec. 8A(g)) For natural person N/A N/A N/A vi vi $7,500 For natural person/fraud N/A N/A N/A vi 80,000 For any other person/fraud N/A N/A N/A vi 400,000 For natural person/fraud/substantial losses or risk of losses to others or gains to self N/A N/A N/A vi 160,000 For any other person/fraud/substantial losses or risk of losses to others or gain to self N/A N/A N/A vi 775,000 15 U.S.C. 77t(d) (Securities Act Sec. 20(d)) For natural person $5,500 $6,500 $6,500 7,500 7,500 For natural person/fraud 55,000 60,000 65,000 75,000 80,000 For any other person/fraud 275,000 300,000 325,000 375,000 400,000 For natural person/fraud/substantial losses or risk of losses to others 110,000 120,000 130,000 150,000 160,000 For any other person/fraud/substantial losses or risk of losses to others 550,000 600,000 650,000 725,000 775,000 15 U.S.C. 78u(d)(3) (Exchange Act Sec. 21(d)(3)) For natural person 5,500 6,500 6,500 7,500 7,500 For natural person/fraud 55,000 60,000 65,000 75,000 80,000 For any other person/fraud 275,000 300,000 325,000 375,000 400,000 For natural person/fraud/substantial losses or risk of losses to others or gains to self 110,000 120,000 130,000 150,000 160,000 For any other person/fraud/substantial losses or risk of losses to others or gain to self 550,000 600,000 650,000 725,000 775,000 15 U.S.C. 78u-1(a)(3) (Exchange Act Sec. 21A(a)(3)) Insider Trading—controlling person 1,100,000 1,200,000 1,275,000 1,425,000 1,525,000 15 U.S.C. 78u-2 (Exchange Act Sec. 21B) For natural person 5,500 6,500 6,500 7,500 7,500 For natural person/fraud 55,000 60,000 65,000 75,000 80,000 For any other person/fraud 275,000 300,000 325,000 375,000 400,000 For natural person/fraud/substantial losses or risk of losses to others 110,000 120,000 130,000 150,000 160,000 For any other person/fraud/substantial losses or risk of losses to others 550,000 600,000 650,000 725,000 775,000 15 U.S.C. 78ff(b) (Exchange Act Sec. 32(b)) Exchange Act/failure to file information documents, reports 110 110 110 110 210 15 U.S.C. 78ff(c)(1)(B) (Exchange Act Sec. 32(c)(1)(B)) Foreign Corrupt Practices—any issuer 11,000 11,000 11,000 16,000 16,000 15 U.S.C. 78ff(c)(2)(B) (Exchange Act Sec. 32(c)(2)(B)) Foreign Corrupt Practices—any agent or stockholder acting on behalf of issuer 11,000 11,000 11,000 16,000 16,000 15 U.S.C. 80a-9(d) (Investment Company Act Sec. 9(d)) For natural person 5,500 6,500 6,500 7,500 7,500 For natural person/fraud 55,000 60,000 65,000 75,000 80,000 For any other person/fraud 275,000 300,000 325,000 375,000 400,000 For natural person/fraud/substantial losses or risk of losses to others or gains to self 110,000 120,000 130,000 150,000 160,000 For any other person/fraud/substantial losses or risk of losses to others or gain to self 550,000 600,000 650,000 725,000 775,000 15 U.S.C. 80a-41(e) (Investment Company Act Sec. 42(e)) For natural person 5,500 6,500 6,500 7,500 7,500 For natural person/fraud 55,000 60,000 65,000 75,000 80,000 For any other person/fraud 275,000 300,000 325,000 375,000 400,000 For natural person/fraud/substantial losses or risk of losses to others 110,000 120,000 130,000 150,000 160,000 For any other person/fraud/substantial losses or risk of losses to others 550,000 600,000 650,000 725,000 775,000 15 U.S.C. 80b-3(i) (Investment Advisers Act Sec. 203(i)) For natural person 5,500 6,500 6,500 7,500 7,500 For natural person/fraud 55,000 60,000 65,000 75,000 80,000 For any other person/fraud 275,000 300,000 325,000 375,000 400,000 For natural person/fraud/substantial losses or risk of losses to others or gains to self 110,000 120,000 130,000 150,000 160,000 For any other person/fraud/substantial losses or risk of losses to others or gain to self 550,000 600,000 650,000 725,000 775,000 15 U.S.C. 80b-9(e) (Investment Advisers Act Sec. 209(e)) For natural person 5,500 6,500 6,500 7,500 7,500 For natural person/fraud 55,000 60,000 65,000 75,000 80,000 For any other person/fraud 275,000 300,000 325,000 375,000 400,000 For natural person/fraud/substantial losses or risk of losses to others 110,000 120,000 130,000 150,000 160,000 For any other person/fraud/substantial losses or risk of losses to others 550,000 600,000 650,000 725,000 775,000 15 U.S.C. 7215(c)(4)(D)(i) (Sarbanes-Oxley Act Sec. 105(c)(4)(D)(i)) For natural person N/A vii vii 110,000 120,000 130,000 15 U.S.C. 7215(c)(4)(D)(ii) (Sarbanes-Oxley Act Sec. 105(c)(4)(D)(ii)) For natural person N/A vii vii 800,000 900,000 950,000 i ii iii iv v vi vii [82 FR 5371, Jan. 18, 2017] Subpart F—Fair Fund and Disgorgement Plans Authority: 15 U.S.C. 77h-1, 77s, 77u, 78c(b), 78d-1, 78d-2, 78u-2, 78u-3, 78v, 78w, 80a-9, 80a-37, 80a-39, 80a-40, 80b-3, 80b-11, 80b-12, and 7246. Source: 69 FR 13180, Mar. 19, 2004, unless otherwise noted. § 201.1100 Creation of Fair Fund. In any agency process initiated by an order instituting proceedings in which the Commission or the hearing officer issues an order requiring the payment of disgorgement by a respondent and also assessing a civil money penalty against that respondent, the Commission or the hearing officer may order that the amount of disgorgement and of the civil penalty, together with any funds received pursuant to 15 U.S.C. 7246(b), be used to create a fund for the benefit of investors who were harmed by the violation. [70 FR 72570, Dec. 5, 2005] § 201.1101 Submission of plan of distribution; contents of plan. (a) Submission. (b) Contents of plan. (1) Procedures for the receipt of additional funds, including the specification of any account where funds will be held, the instruments in which the funds may be invested; and, in the case of a Fair Fund, the receipt of any funds pursuant to 15 U.S.C. 7246(b), if applicable; (2) Specification of categories of persons potentially eligible to receive proceeds from the fund; (3) Procedures for providing notice to such persons of the existence of the fund and their potential eligibility to receive proceeds of the fund; (4) Procedures for making and approving claims, procedures for handling disputed claims, and a cut-off date for the making of claims; (5) A proposed date for the termination of the fund, including provision for the disposition of any funds not otherwise distributed; (6) Procedures for the administration of the fund, including selection, compensation, and, as necessary, indemnification of a fund administrator to oversee the fund, process claims, prepare accountings, file tax returns, and, subject to the approval of the Commission, make distributions from the fund to investors who were harmed by the violation; and (7) Such other provisions as the Commission or the hearing officer may require. § 201.1102 Provisions for payment. (a) Payment to registry of the court or court-appointed receiver. (b) Payment to the United States Treasury under certain circumstances. § 201.1103 Notice of proposed plan and opportunity for comment by non-parties. Notice of a proposed plan of disgorgement or a proposed Fair Fund plan shall be published on the SEC website and in such other publications as the Commission or the hearing officer may require. The notice shall specify how copies of the proposed plan may be obtained and shall state that persons desiring to comment on the proposed plan may submit their views, in writing, to the Commission. [83 FR 25366, June 1, 2018] § 201.1104 Order approving, modifying, or disapproving proposed plan. At any time after 30 days following publication of notice of a proposed plan of disgorgement or of a proposed Fair Fund plan, the Commission shall, by order, approve, approve with modifications, or disapprove the proposed plan. In the discretion of the Commission, a proposed plan that is substantially modified prior to adoption may be republished for an additional comment period pursuant to § 201.1103. The order approving or disapproving the plan should be entered within 30 days after the end of the final period allowed for comments on the proposed plan unless the Commission or the hearing officer, by written order, allows a longer period for good cause shown. § 201.1105 Administration of plan. (a) Appointment and removal of administrator. (b) Assistance by respondent. (c) Administrator to post bond. (d) Administrator's fees. (e) Source of funds. (f) Accountings. (g) Amendment. § 201.1106 Right to challenge. Other than in connection with the opportunity to submit comments as provided in § 201.1103, no person shall be granted leave to intervene or to participate or otherwise to appear in any agency proceeding or otherwise to challenge an order of disgorgement or creation of a Fair Fund; or an order approving, approving with modifications, or disapproving a plan of disgorgement or a Fair Fund plan; or any determination relating to a plan based solely upon that person's eligibility or potential eligibility to participate in a fund or based upon any private right of action such person may have against any person who is also a respondent in the proceeding.

Related documents

• 50 CFR Part 600 — Magnuson-Stevens Act Provisions#512148
• 50 CFR Part 622 — Fisheries of the Caribbean, Gulf of America, and South Atlantic#512149
• 50 CFR Part 635 — Atlantic Highly Migratory Species#512150
• 50 CFR Part 648 — Fisheries of the Northeastern United States#512151
• 50 CFR Part 660 — Fisheries off West Coast States#512152